Andrew MacKinlay: May I take the Secretary of State back to the carefully crafted reply that he gave a few moments ago to the hon. Member for South-West Bedfordshire (Andrew Selous) about the inquiry that is to be held into the loss of our troops as a result of a missile? Will he assure the House that the inquiry will cover the source of that missile, rather than just the incident itself? That is what I felt the Minister—unintentionally, of course—tried to avoid. We want an assurance that if intelligence and information are available it will be disclosed at the inquiry and subsequently made public, and that the inquiry's remit will cover that.

Des Browne: When history considers the contribution of my right hon. Friend the Prime Minister to conflict resolution in a number of theatres around the world, it will significantly record that he has made a major contribution to peace in a number of parts of the world. I am not aware of any leaking of articles or briefing about a timetable. What I have sought to do, as indeed did my predecessor, is to give some clarity to the conditions that will need to be fulfilled before it will be appropriate for our forces to withdraw, first, part of the way, and then fully from Iraq. Like my predecessor, I have sought not to put a timetable on that, because I do not think that that would be in the interests of either the people of Iraq or the security of our own forces who are serving in Iraq, often in dangerous circumstances.
	I fully agree that there needs to be some clarity in the description of the process, and I think that that is clear and that most people understand what the conditions need to be, but it is appropriate, when there is progress along that direction of travel, for that to be reported to the House. During my visit to Iraq, those whom we charge with the responsibility of making such assessments on the ground indicated that in a substantial part of Iraq for which we have responsibility significant progress has been made.

Adam Ingram: As well as paying tribute to the people of Shropshire, I pay tribute to my hon. Friend, who has been fully determined in pursuing a range of issues, some of which have played to his advantage, although not completely in the way in which he sought. He listed a range of events. If on assessment they remain or are built on, that will be good news. If we have to make a decision that, in the interests of defence, we co-locate headquarters or rationalise to ensure that we make best use of resources, I am sorry but I will have to give him bad news—but I will do that at the time that I make my decision.

Mark Pritchard: Given the skills, dedication and commitment of Defence Logistics Organisation workers in Shropshire and the potential co-location to the south-west, is it not incumbent on the Ministry of Defence to have an open, transparent and fair consultation process? If so, why has the Ministry of Defence already purchased the building in Bristol that is being investigated by the Auditor General?

Adam Ingram: Just because it is being investigated does not mean that it is wrong, and the hon. Gentleman should not pre-judge. As has been explained before, the property was purchased as a piece of developmental work, looking at possibilities for the co-location of headquarters. Had we delayed purchasing the property when we had the opportunity to do so and then decided to so co-locate, it would have cost us more money. This is a judicious piece of positioning. It does not mean that that will be the final conclusion. I take exception to the hon. Gentleman's approach on openness and transparency. I have met him and others, and I will continue to do so. We operate openly and transparently in arriving at decisions and explain them afterwards in consultation with the trade unions and staff interests. I am sorry that he takes a different view, but I would not have thought that that was based on his experience.

Adam Ingram: I will not dignify the hon. Gentleman's question with a response, given the subject matter. He has asked about rotary lift, which has nothing to do with heavy lift. We plan to hold a competition to find a new medium-lift helicopter to meet our medium-term needs, and it will proceed in due course. In the meantime, we must examine our capacity and capabilities on rotary lift, and we are considering whether Puma and Sea King helicopters can be modified or refurbished for short-term use. We are also exploring how we can get more out of existing Merlin and Chinook helicopters and the feasibility of leasing aircraft. We are aware of the issues that must be addressed: there may well be a short-term solution, but there will be medium-term and long-term solutions, too, which means significant investment in our air capacity in this country.

Mark Lancaster: By world standards, the Royal Air Force has no heavy lift capability. Our four C-17s—there are soon to be five—are incapable even of sustaining a brigade deployed overseas. When will the RAF get a genuine heavy lift capability?

Adam Ingram: The C-17s were intended to plug a gap arising from a previous procurement hiatus on the A400M, when we realised that we needed that heavy lift capability. The A400M has been long awaited. I will not remind the hon. Gentleman of when it was first procured; nor do we necessarily need to rehearse the delays associated with it under previous Administrations. Let me just say that we identified the shortfall. We have leased four C-17s, which we will buy out, and we are looking to purchase another one. We await the 25 A400Ms for which we are under contract.

Derek Wyatt: I thank my right hon. Friend for that response. Is he in a position to comment on the bravery of the Iraqi security guards in helping when our Lynx helicopter was shot down 16 days ago? My real question is this: when we have left, what will be the long-term legacy with the Iraqi security forces? Will they be allowed to come to Sandhurst, will we have intelligence-sharing between the Met police, and so on?

Des Browne: My hon. Friend is right to point out—as does General Cooper, who commands our forces in south-east Iraq—the contribution that the Iraqi security forces and police made to the calming of the situation after the Lynx crash. There had been other evidence of the improving capability of the Iraqi forces in their contribution to the referendum and to the security of the general election in December last year. From our point of view as a Government, we will continue to offer the Iraqi Government support on a bilateral basis, but it will of course be for them to decide what continuing relationship they want with us. As they have only today formed the first democratically elected Government, it may be a bit premature for me to describe from the Dispatch Box what our continuing relationship with them will be.

Nick Harvey: What assessment has been made of the extent of militia infiltration of the Iraqi security forces and police, and what is being done to deal with that? Does the Minister believe that a programme, along the lines of those which worked successfully in the Balkans, of disarmament, demobilisation and reintegration would be the logical next step in Iraq?

Des Browne: I have every confidence in our NATO allies and their ability to carry out the tasks that they have accepted in the various parts of Afghanistan to which they have deployed. I have enough concern about my responsibilities without directing those who are responsible for delivering those tasks and in whom I have confidence.
	However, I agree with the first part of my hon. Friend's question. A strong message is being conveyed, not only to the Taliban but to others who are engaged in violence in southern Afghanistan where deployment is taking place, that we will meet violence with a robust response when necessary to protect not only our troops but Afghan troops who are deployed in that area to deliver security to it.

Des Browne: The hon. Gentleman will be aware that, in the Defence Select Committee's report on the supplementary estimates, a request was made for a breakdown of the £1 billion cost so as to give Parliament some information on how the money was being spent. In response to that request, the MOD produced such a breakdown. The hon. Gentleman will know, as I do from my previous job, that we make plans for public spending for three years at a time, at the most. I believe that the role of our troops in Afghanistan lies at the heart of his question, and there is significant clarity about that role. I also accept, however, that we will not be able to deliver the outcome that we hope to deliver within a time scale of three years.

Liam Fox: The Secretary of State will be aware of last night's attack on Panjwayi, a known Taliban stronghold. He will also be aware of the changing security situation in southern Afghanistan, where more than 200 rebels have reportedly been killed in the past two weeks during the fiercest fighting since the fall of the Taliban in 2001. The right hon. Gentleman's predecessor confirmed that our troops were engaged not in counter-terrorism but in counter-insurgency where we may have to strike first. Are the Taliban considered to be terrorists or insurgents, for the purposes of our mission in Afghanistan?

Civilian Internees

Adam Ingram: Yes, we have been in office for nine years, and we have now established a defence industrial strategy. It must deal with some difficult timelines in, for instance, ensuring that research and technology are specific to defence needs and secure value for money and the desired outputs. It must also take account of the role of the innovative sector and of small and medium-sized enterprises, which would argue that they have been neglected for too long. There are some key, core capabilities in that sector, which are sometimes bypassed. Those capabilities should be identified, and the barriers lifted.
	The important point is that out of the criticism is now coming something of substance. Expenditure is being stabilised, and the plan is to raise it in line with inflation in the coming years. Meanwhile, a review will be undertaken—it will report at the end of the year—to see whether more needs to be done. So, although we may collectively have taken decisions that, overall, have not been to our benefit, we are addressing that issue and the hon. Lady should thank this Government for doing so.

Lindsay Hoyle: The Minister is going on about the industrial strategy, but I should tell him that a hole has already been blown in it, thanks to our inability independently to produce bullets, artillery shells or bombs, as a result of the transfer of boxer caps and initiators to Germany, France and Switzerland. What message does he have for those loyal workers at Royal Ordnance who have lost their jobs?

Adam Ingram: Every sector involved in defence and procurement has welcomed the defence industrial strategy. That is not to say that it is completely fixed or that everyone is in total agreement, but trade unions and industry have welcomed it, and the reason why is that we have not previously had a clear exposition of the way forward. What are our future horizons? What type of equipment are we likely to need, and what are the industry's core capabilities to provide it? What research do we need to undertake to underpin all this? We have embarked on a close examination of these issues, and as I said to the hon. Member for Mid-Bedfordshire (Mrs. Dorries) in answer to her original question, there are some very tight timelines to work to. We have to get this right, but such carping from the sidelines does not accord with the view of industry or the trade unions, and it certainly is not in line with what we believe to be right for defence.

Tom Watson: I thank my hon. Friend for that question. I know that he has been a campaigner on behalf of the Royal Regiment of Fusiliers, which has recently been given an additional grant to run a marketing campaign locally to help to make good the shortfall in recruits across two of its battalions. We all know that if one wants the best armed forces in the world, one has to recruit the best people.

Ashok Kumar: I welcome my right hon. Friend to his new post and praise our forces for taking on the Taliban. My right hon. Friend has my strong support for all the effort that we are making to remove the Taliban and we should not move a millimetre from that policy. What support are we getting from the Government of Pakistan, especially on the Pakistan-Afghanistan border, in our efforts to remove the Taliban?

Adam Ingram: I agree entirely with the sentiments expressed by my hon. Friend and, like him, pay particular tribute to the London Regiment. I recently visited 7 Brigade, the Desert Rats, which has just returned from Iraq and I was very struck, as I have been for many years, by how integrated the TA is with the regular forces. It is impossible to tell them apart in terms of training, commitment, professionalism, dedication to task and their willingness to defend the interests of this country. The TA is a formidable body of men and women no matter where it serves—whether Basra, which my hon. Friend mentioned, Kosovo, Bosnia, Afghanistan or elsewhere. Wherever we post the TA, its members serve with the highest distinction. By rebalancing the TA, we have tried to give it a new focus and structure that will make it even better, which would be a big achievement.

Adam Ingram: I agree with the general sentiments that the hon. Gentleman expresses, but it has been ever thus and we have to address some of the issues. One of the early lessons we learned from Operation Telic and from Afghanistan was that individual specialists were returning not to a unit, base or barracks but to their normal job—or sometimes not—and isolation was causing them problems. We have embarked on a complete examination of the provision of that support. I mentioned my visit to the Desert Rats; they operate a system known as "home rat" for families left at home, not just in Germany but for TA families too. The proposals for our new mental health care initiative offer another good example of how we are addressing the issue. We have learned some valuable lessons about something that was not new for this Government, but we are addressing it.

Gerald Howarth: On a point of order, Mr. Speaker. Following the many tributes to the late Eric Forth from both sides of the House last week, I seek your advice on a matter relating to the hon. Member for Romsey (Sandra Gidley) who wrote a piece headed "Letter from Westminster", which I assume is a regular column in her local newspaper,  The Romsey Advertiser, in which she referred to the Climate Change and Sustainable Energy Bill and her fear that the "very obstructive" actions of my hon. Friend the Member for Christchurch (Mr. Chope) and Eric Forth would scupper the Bill. She continued:
	"In the end all was well. I don't know whether this had anything to do with the fact that Eric Forth could not turn up due to being 'under the weather'. Very appropriate excuse for non attendance at a discussion on climate change."
	The hon. Lady does mention in the article, which was published on Friday, that Eric Forth had died on Wednesday, but it was mentioned in parenthesis. Many hon. Members would find that very insensitive. I have spoken to the hon. Lady this morning—she is on a Select Committee visit to the United States. Although she had conveyed a message to the newspaper to withdraw or, at least, put the article in some context, what advice can you give to Members about the importance of ensuring that that which appears above our own names in print is our responsibility? Will you caution us about being insensitive and about the fact that if we fear that something that we have committed to print may be insensitive and offend. Members—and, indeed, the wider public—we should ourselves take care to ensure that it does not appear in print?

As amended in the Select Committee, further considered.

Harry Cohen: On a point of order, Mrs. Heal. We have some very quirky practices in the House, one of which has brought about the collapse of amendments to the Bill in Committee. A number of hon. Members wanted to table amendments, but because the House rose very early at about 1.30 pm on Thursday those amendments were not tabled and could not be selected.
	I wanted to table amendments on the Wednesday, but they needed to be tidied up and put in the right place. I had constituency duties on the Thursday morning, and by 2 o'clock, when I said that they were ready to be tabled, the House was not sitting so they could not be tabled. They are therefore not eligible to be considered, despite the fact that they are important amendments. I am particularly aggrieved by that, although I do not blame the Clerks—it is because of the quirky nature of this muddle. My amendments would have been tabled as starred amendments, so they would not have been selected, but they would have at least appeared on the amendment paper. I had five amendments, and I would have very much appreciated them being recorded in the official record. One of them, for example, said:
	"Clause 50, page 22, line 7, at the end insert"—

Harry Cohen: Further to that point of order, Mrs. Heal. The Bill was not timetabled. It is an incredibly complex Bill, with 378 detailed clauses and many aspects to it. I had to obtain a quite detailed briefing from the Library on several of those aspects. In those circumstances, it is reasonable to believe that even if such amendments are not taken, because they are starred they should appear somewhere on the official record. I want my amendments to be on the official record in some way because the issues that I attempted to raise are important. I ask you not to give me a negative answer, Mrs. Heal, but to find some arrangement whereby my amendments are on the official record, even if they cannot be taken. I wish to raise them as a point of order and mention them so that they are on the official record. Will you give me the opportunity to do that?

John McDonnell: I absolutely sympathise with my hon. Friend the Member for Leyton and Wanstead (Harry Cohen) about the process by which amendments to the Bill were garnered. It was exceptionally unfair to several hon. Members who were busy on that particular day, despite the earlier timetabling.
	There has been a natural tendency for those with military experience to engage in past debates on military subjects more thoroughly than others. At times, those of us without military experience have felt that our views have somehow not been valued as much as theirs. However, despite the fact that some of us have taken a separate view from large sections of the House in previous debates, especially on military action, we all come to such debates with empathy and respect for those who serve in the military.
	Let my put on the record my family experience. My father served in the Army in the second world war. One of my uncles served in the RAF and another served in the Navy. On my mother's side, my grandfather served in the first world war and my great-grandfather served in the first world war and the Boer war. We thus come to the debate with a shared experience over generations and a respect for those who serve in the military for what they do and the essential role that they play in securing the safety of this country. We also come to the debate following discussions with serving personnel and those who are no longer serving. Such people have had experiences in Northern Ireland, the Falklands, the Balkans and, more recently, Iraq.
	I tabled amendments Nos. 8 and 9—perhaps a bit more expeditiously than my hon. Friend the Member for Leyton and Wanstead, but with only hours to spare—because I wanted to encourage a debate about desertion. When the Bill was introduced, it was presented as a non-contentious tidying-up exercise that was largely to do with legalised drafting to consolidate existing laws. However, it was also argued that the Bill would give us the opportunity to update laws that applied to those serving in the military and civilians associated with military activity.
	Clause 8, however, does not update existing law. It translates almost exactly the existing threat of life imprisonment for those who refuse to fight—those who desert—from past law into new law. However, it also extends that threat to those who refuse to participate in the occupation of subjugated countries and territories. Clause 40 again translates existing sanctions into new law by threatening those who incite others to desert with life imprisonment.
	The threat of life imprisonment in such circumstances is little short of barbaric. My hon. Friend the Member for Thurrock (Andrew Mackinlay) has tabled new clauses 1 and 2, which relate to what happened during the first world war. At that time, we deprived people of their lives for desertion by shooting them at dawn. Through the Bill, we are maintaining the deprivation of life by threatening to imprison people for the rest of their lives if they refuse to engage in military activity or the occupation of a foreign country. I thought that we would have moved on from the last century and that we would have the opportunity to abolish that sanction by updating our legislation.
	I also thought that we would have learned more about why people desert from our experiences of the two world wars and, more recently, of the Balkans and Iraq. In many instances, people desert due to fear about the threat to their lives and safety and because of trauma. Many such people are in absolute panic. In particular, due to the debate about the casualties of the first world war through the shot-at-dawn campaign, I thought that we were developing a more sympathetic understanding that we did not need to use such barbaric sanctions.
	There are others who refuse to fight based upon conscience. We have had that debate in this Chamber on a number of occasions when deciding whether to send our troops to war. We are able to exercise our right of conscience. I remember the debate about Iraq and our heavy discussions about the theory of just war and whether Iraq was a just war. I thought that we had extended that right of conscience to military personnel.
	I appreciate that there is a system under which people can claim to be conscientious objectors. From the evidence from the Peace Pledge Union and others that was provided to the Select Committee that considered the Bill, it is clear that that system is not regulated within statute. It is a procedure, but it is not within this legislation, which was meant to update and to consolidate the processes of law controlling issues around desertion. I thought that, eventually, it would control the processes for the exercise of conscience.
	While taking evidence, we discovered that military personnel were not adequately informed not only of their right to exercise their right of conscience, but of the processes themselves. The position was outlined in the Select Committee by the Peace Pledge Union. That brought forth a memorandum from the Ministry of Defence, which at least explained the process, even though it had not advertised it in any leaflets or in the practical advice given to serving personnel. The rejection of the process of an armed forces federation to assist those who wish to exercise their right undermines their ability to access the procedures themselves. I hope that later, in a debate on a new clause, we may accede to the request to strengthen the right of representation for serving military personnel.
	I do not believe that this part of the Bill is a tidying-up exercise. I believe that the Bill is really about the war in Iraq. We are aware that the number of absconders has trebled since the invasion of Iraq. There has been an increase in the number of soldiers questioning Government policy about that invasion, an increase in the number of soldiers questioning the morality and legality of the occupation and an increase in the number of serving personnel speaking out.

Harry Cohen: I am grateful to my hon. Friend for giving way and for his support for my point of order earlier, which came over somewhat awkwardly—my point of order, that is, not his support for me, which was very eloquent. Clause 8(3)(a) says that "relevant service" means:
	"actions or operations against an enemy".
	He said that the clause applies to Iraq. My understanding is that we have not declared anyone an enemy. I know that a war on terror has been announced, but can he cast some light on who is an enemy in these circumstances? It is said that there are insurgents and terrorists. We know that British soldiers have died. Why cannot the Committee be told who actually is the enemy? Why cannot it be legislated for in some way?

John McDonnell: That is a valid point. The lack of definition of an enemy has enticed the Government to include in clause 8(3) as a relevant service
	"military occupation of a foreign country or territory."
	Without definition of an enemy, service during an occupation of another country is sufficient to qualify as desertion if one withdraws from that service and refuses to participate in that action. I believe that legislation of that sort will fail. No increase in the severity of punishment will prevent servicemen and women from speaking out.
	Many have paid their respects—as I have, too—to serving personnel for the bravery that they show and their professionalism in carrying out their duties, but I also want to salute those who have had the courage and bravery to exercise their moral judgment, and those who have followed their conscience and said no to fighting. They have not supported the occupation and they have refused to serve. I pay tribute to Ben Griffin from the SAS, who said to us last week that he was not willing to support, in his professional life, the invasion of Iraq and the immoral and illegal war in Iraq. I also pay tribute to Flight Lieutenant Malcolm Kendall-Smith, a person of conscience who is in a military prison as a result of refusing to serve in Iraq. Their views should be respected. They, and others who come forward in future, should not be threatened with life imprisonment. History will be their judge, as was the case with the first world war. The people who opposed that barbarism were, in fact, sane and courageous. History will judge individuals who stood up and refused to fight in Iraq, or to support the occupation, to be heroes.

Adam Ingram: I am interested in my hon. Friend's argument. Would he apply the same logic to Kosovo, Sierra Leone and Afghanistan, or does he think that members of the armed forces should exercise their conscience at will, no matter what the country's determination, no matter that it is under a UN mandate, and no matter that assistance is being delivered for a great humanitarian cause? What is the logic of his position?

John McDonnell: Individual members of a voluntary, professional military service have the right as citizens to exercise their judgment in the same way that we do. They should not face the sanction of life imprisonment—that is what the Bill proposes—for exercising that judgment.

Julian Brazier: I did not intend to speak in this debate, so I shall be brief in my support of the Government's proposals.
	Parliament sets a maximum penalty, not a minimum. The hon. Member for Hayes and Harlington (John McDonnell) addressed hard cases—I am not sure whether or not I have his attention—but that is not relevant to the setting of a maximum penalty. If we set a minimum penalty, he could make his case, but the measure is required to cover all eventualities. The historical background that he gave illustrates that point. No one has greater admiration or affection for the hon. Member for Thurrock (Andrew Mackinlay) than me, but the campaign that he has waged on first world war executions overlooks many inconvenient facts. I was privileged to be briefed on the issue by a retired Air Force officer, who spent a year or two going through every one of the 260 folders that survive from the 300 original folders. He examined the background, and he established that there was a total of 3,000 cases: 90 per cent. of executions were refused on appeal. Among the small number of executions, there appear to be a few cases in which there was a genuine injustice. I shall cite an example of a case for which most hon. Members would accept that a sanction of some sort was appropriate. A professional solder who joined the Army five years before the first world war deserted—

Julian Brazier: Indeed, Mrs Heal. I was giving the example of someone who deserted without seeing action at all, although he had been a professional soldier for five years.
	On the argument advanced by the hon. Member for Hayes and Harlington, a maximum penalty must cover all eventualities. The Minister asked him about all the other cases. The hon. Member for Hayes and Harlington replied that the provision dealt with desertion, but we are dealing with cases of desertion and of people refusing to participate—two separate circumstances for which different maximum penalties are set out in the Bill. Is the hon. Gentleman seriously suggesting that anybody who has opted to join the Queen's uniform should not potentially face very grave charges if they refuse to go into action? In an action that the entire country strongly supports, even perhaps—God preserve us—another world war, is the hon. Gentleman seriously suggesting that someone who chose to put on a uniform, with all that that means, and then refuses to participate, should be able to say, "Christ, I might get shot at. I don't want to go", without facing potentially serious charges?
	Producing hard cases has no relevance whatever to maximum penalties. The hard cases can be argued one by one in the courts. That is what we have courts martial for. I urge the hon. Gentleman to think again. If we are trying to run armed forces, of which we have good reason to be proud, and the hon. Gentleman has good reason to be proud of his forebears who served in them, we must have disciplinary penalties. On this measure, the Government are entirely right.

Kevan Jones: Four months, I am reminded, and some of us were more assiduous than others— [Interruption.] My hon. Friend the Member for Hayes and Harlington (John McDonnell) says from a sedentary position that he would have deserted. In the present circumstances, the Government would have welcomed that.
	When I saw the amendments and a press release issued by my hon. Friend, I was worried that we had missed something in the Bill. I was concerned that the civil servants had got one over on us— [Interruption.] Someone says, "Surely not", but those who served on the Committee know that that it was a good process, both the Select Committee and the report. I had to do some research this morning to find out what the current position was, and I think that what is proposed is an improvement on the current position.
	As I understand it, the 1955 Act set out a two-tier system—punishment of up to two years for desertion and another sanction, life imprisonment, for more serious cases, defined as desertion from active service. The definition of active service referred to occupation of a foreign country, so the reference in the Bill is nothing new. That Act was superseded by the 1971 Bill, which removed the lower sanction because of the situation in Northern Ireland, since the definition of active service could not be applied to deployment in another part of the United Kingdom.
	Under the present system, the maximum sentence for desertion is up to life imprisonment. The Bill in its present form is an improvement because it reverts to the 1955 position, by introducing a two-tier system. There will be the possibility of imprisonment up to two years, but the other sanction—rightly, in my opinion—is up to life imprisonment for the more serious offences.
	I know that many hon. Members are worried about the reference to
	"occupation of a foreign country".
	I understand my hon. Friend's position on Iraq. It is not one that I share, but I credit him with being consistent and forceful in his arguments for it. As I said, the reference to occupation of a foreign country was part of the original definition of active service. Therefore, I do not see any great change there, but I understand why there may be concerns. However, a reintroduction of the two-tier system is better than the previous position.

Kevan Jones: That is an argument that can be had around a specific campaign such as the one in Iraq. I am grateful to my hon. Friend, but he knows that we disagree on that. The important point is that if people have agreed to serve in Her Majesty's armed forces, there must be some sanction or control over their actions. My hon. Friend the Member for Hayes and Harlington referred to those who were shot at dawn during the first world war. I shall seek to catch your eye later, Mrs. Heal, to speak on that matter, with which I have great sympathies, but there is a great difference between a conscript, who has no choice over going to war, and those who take the conscious decision to join Her Majesty's armed forces. Without some kind of sanction, how would one operate in any circumstances? We cannot have armed forces who pick and choose when and where they serve.

Kevan Jones: My hon. Friend's point goes to the kernel of the argument. In the armed forces the ultimate sanction must be there for the sake of military discipline in very difficult situations. As I have said, there is a great difference between conscripted armed forces and those who have volunteered and made a conscious decision to serve in the armed forces.
	I also agree with the point made by my hon. Friend the Member for Hayes and Harlington about the way in which our armed forces can make representations. I spoke on the armed forces federation when I moved new clause 23 in Committee, and if I have the opportunity I shall speak on that matter again today. An issue has been raised as a result of the situation in Iraq, not so much on this clause but on how our armed forces obtain redress for some of their grievances, not just those that arise from their service abroad, but here.
	I shall resist the amendment because the measure is an advance, rather than turning the clock back in the way that the amendment proposes.

Nick Harvey: No; the Bill does not change the position. Existing statute allows a sentence of up to life imprisonment. I understand the point made by the hon. Member for Hayes and Harlington—that the Bill might have been an opportunity completely to modernise the legislation—but I do not accept the argument that the Bill makes the situation worse. Although some have pointed out that including subsection (3)(c), which concerns an invasion of foreign territory, on the face of the Bill is profound, I do not believe that it will change the existing law. Although I sympathise with some of the points made by the hon. Member for Hayes and Harlington, the amendments will not have the effect that he seeks, and I think that it is as well that they do not, because it would not be desirable to reduce that serious offence to an offence that carries a maximum two-year sentence.

Harry Cohen: The clause provides for life, and there is an amendment that would delete that. He either supports that or he does not. If not, these are weasel words, quite frankly. I heard what he said in his speech, but it is not the same as his actions.
	My hon. Friend the Member for Hayes and Harlington (John McDonnell) emphasised that under clause 8, life is a possibility, and I support him in wanting to get rid of that.

Angus MacNeil: Clause 8 does not only cover desertion in the heat of battle, because subsection (2) states:
	"For the purposes of this Act a person deserts if he is absent without leave and...he intends to avoid any particular service or kind of service".
	That could lead to people who might have a real conscientious objection to a particular action, or a war such as Iraq, facing life in prison.

Harry Cohen: First, I am grateful not to be a Minister in the MOD. I never had any expectation of being so. However, I have always argued from the Back Benches that whatever our forces do should comply with the law of this country and international law, which should not be downgraded.
	A sentence of up to life is excessive and should not be on the statute book. The Library has provided a host of alternative sentences, even to detention. They include dismissal, forfeiture of seniority, reduction in rank, a fine, a severe reprimand, stoppages of pay and minor punishments, including community punishments, which would be appropriate for conscientious objectors. We allow community activity and that would be appropriate for someone who was akin to a conscientious objector. The Library paper says of community punishments that
	"a sentence of this kind may not be passed unless the court considers that the offence is serious enough to warrant it".
	A serious offence therefore leads to such a punishment. That makes it clear that a sentence of up to life is excessive.

Harry Cohen: Indeed. That clause deals with misconduct on operations. We do not need the provision in clause 8 as well, as it will allow the legal authorities to cherry pick which sentence to apply. They will choose the harshest sentence if they want to.
	Clause 8(3) deals with the definitions of "relevant service", and includes
	"actions or operations against an enemy".
	But it is no longer clear-cut who the enemy is, as we no longer officially declare war.

Harry Cohen: Let me now— [ Interruption.] I have two issues running at the same time here. I apologise to the Minister. I will come back to the point that he has made in a moment. One of my colleagues has just drawn to my attention paragraph 62 of the explanatory notes to the Bill, which states:
	"The maximum sentence for desertion is generally two years' imprisonment. But the maximum is life imprisonment if the offender deserts when on service, or under orders to go on service, of the types described in the second bullet above, or if his intention is to avoid such service."
	However, a stricter distinction is needed in relation to those who, as the hon. Member for Portsmouth, South said, put lives at risk in the heat of battle. That issue must be distinguished from that of those who say that the Iraq war is illegal under international law and who exercise their conscience and personal responsibility in that regard. The fact that we are having this argument shows the muddled way in which the clauses have been defined and worded and the lack of proper consideration of them; otherwise, we would not be having this dispute about what the provision means. The Government should therefore accept the amendment, so that the life sentence for the second category to which I referred is withdrawn.

Harry Cohen: In a sense, the point is made. In an earlier intervention, I made the point that international law is as important as law, and that should apply. This Government and Parliament have put a lot of personal responsibility on people to comply with the law. If they do not, the punishments are increased. Therefore, they must examine the law and international law as it applies in military terms. The punishment should therefore reflect that personal responsibility. As has been said, a life sentence is inappropriate.
	As to who an enemy is, the Minister's intervention, in which he said that the situation is like it always has been, just will not do. In the second world war, we had a clearly defined enemy, which was referred to as an enemy. Now, even al-Qaeda is not referred to as an enemy in legislation or in what has been laid out in Parliament. Things have therefore changed considerably. If we are to apply such emphasis and impose such strict sentences on the basis of having an enemy, let us at least declare a war in the traditional way, so that we know who the enemy is, and so that people are clear about that. Otherwise, the enemy can change from day to day. In Iraq, is the enemy al-Qaeda, or is it nationalists? Who exactly is the enemy in Iraq?

Harry Cohen: As my hon. Friend says from a sedentary position, that could easily be the Americans in many cases. I am happy if the Minister wants to include in legislation the definition that anybody who shoots at our forces is the enemy. That is not in the legislation at the moment. If we are going to go to war and put such burdens on people, we should be explicit about whom the enemy is in any given circumstances.
	Subsection (3)(b) refers to
	"operations outside the British Islands for the protection of life or property".
	Does that cover Iraqi lives and property? Are they covered, or are they usefully ignored? Are we talking only about United Kingdom lives and property, or not? I am waiting for the Minister to intervene on that. After all, the Government claim that we are there on a legal basis. They claim that we are there according to the will of the United Nations, protecting Iraqi lives and property, although the property has been ripped off to an enormous degree and more than 100,000 lives have been lost. It is interesting that the Minister remains silent on that. That in itself could give people to ask, as a defence, what lives or property they were actually defending.
	The third paragraph, which was referred to by my hon. Friend the Member for Hayes and Harlington (John McDonnell), is the most objectionable in my view. It refers to
	"military occupation of a foreign country or territory".
	It is important to establish whether that occupation is legal or illegal. If it is legal and properly authorised, I think that courts martial and sentences should follow; if it is illegal, that represents a solid defence, and that people who advance that defence should not be punished in the excessive way proposed by the Bill.

Harry Cohen: I shall go straight back to the point, Mrs. Heal. I was saying that I agreed with my hon. Friend the Member for Hayes and Harlington. If military occupation of a foreign country or territory in such circumstances is illegal under international law, we are enshrining illegality in our law, and that is something that we should never do.
	Let me make one more point, about the Nuremberg trials. When people said as a defence that they had been acting under orders, although their actions had been deemed illegal under international law, we said that that was not a defence. We said that they had to exercise personal responsibility. Now people are exercising personal responsibility. People like Flight-Lieutenant Malcolm Kendall-Smith have looked at all the information that has dribbled out. He said that the war was illegal as far as he could see, that Kofi Annan had said it was illegal and that personal responsibility dictated that he should not take part in it.

Harry Cohen: Subsection 3(c) has the potential to enshrine an illegal occupation. People should exercise, and have the right to exercise, their personal responsibility. The punishments that we include in Acts of Parliament should reflect their right to do so; they should not be excessively harsh. The punishment of imprisonment of up to life imprisonment is exceptionally harsh and should be removed from the Bill. I urge the Liberals and everybody else to come off the fence and oppose it.

Patrick Mercer: It is a great pleasure to follow the hon. Member for Leyton and Wanstead (Harry Cohen); we are used to hearing his lengthy speeches. I salute the modesty with which the hon. Member for Hayes and Harlington (John McDonnell) spoke and the due deference that he paid to the members of his family who have served in the armed forces. He approaches the amendment with a great deal of principle and thought. However, I think that I speak as the only person in here who has commanded a battalion, faced the prospect of operations, disciplined soldiers, and encouraged them to go on operations and, indeed, to face the enemy.
	I do not wish to come the barrack-room lawyer, but there is a degree of confusion about the points that we are addressing. Desertion is an extremely serious charge, and if you do not mind, Mrs. Heal, I shall address most of my comments to my personal experience in the Army, which are equally applicable to the Navy, the Royal Air Force and the Royal Marines. As a lieutenant-colonel commanding a battalion of infantry, it was my job to deal with soldiers under the Army Act 1955. I had to deal with the charge of desertion, under the auspices of the 1955 Act, once in my two-and-a-half years commanding the largest battalion in the British Army, and twice on operations. I had to deal with absence daily.
	Some of the soldiers serving in Tidworth, where I had 950 soldiers mainly drawn—lucky devils—from the counties of Nottinghamshire and Derbyshire, would frequently "go abo", as the vernacular has it. In other words, they would go absent. They would exercise their personal freedom and choice, and, by golly, they paid for it. They were charged, if necessary, under the 1955 Act, and they were dealt with under various sections, but usually section 69. For periods of absence, they were dealt with by means of anything from a serious telling off, to a fine, to a period of imprisonment not exceeding 14 days. Such a period of imprisonment was the only one that I could regularly impose.
	From time to time, soldiers would absent themselves—go absent—and go, usually, to the large conurbations. I, as a furious commanding officer with a furious adjutant, would say, "Charge this man with desertion." The advice that we received was, "Absolutely not. Do you realise what desertion means?" Having had 20-odd years experience as an infantry officer, I knew precisely what it meant. The guideline was that a soldier had to have been absent for more than 112 days and to have destroyed his identity card. That was the rule of thumb that we used before that soldier would appear in front of me to be remanded for trial by court martial. It was not a case in which a humble lieutenant-colonel could have become involved. The charge of desertion was extremely serious, and very serious penalties went with it.
	I say to the hon. Member for Hayes and Harlington that unless one has served in a battalion, or on a warship or an air station, one does not understand the problem that officers face in trying to deal with soldiers, airmen or sailors daily. They are a rumbustious and difficult lot. They decide from time to time that they are going to exercise their personal freedom and drink too much, fight, go absent and so on. However, in my experience, things change enormously when that battalion is warned for operations.
	Soldiers will absent themselves before a battalion goes on operations. In my experience, not many absent themselves for reasons of cowardice. Many absent themselves—I continue to use that phrase, rather than "desert"—because they cannot get their heads round the difficulty of being abroad for six months, the potential dangers or domestic problems. Only once on operations did I have a soldier who absented himself in the face of the enemy, and he was not charged with desertion.
	Flight-Lieutenant Kendall-Smith was not charged with desertion: he was charged, I believe, with being absent, or with a similar charge within those parameters. He did not desert. Trooper Griffin behaved with much courage and probity. He had reached the rank of corporal in his parent regiment and then gone through the selection process for the Special Air Service—

Patrick Mercer: But the point that I have been trying to make concerns the circumstances in which someone should be charged with desertion. In any case, he is not a Mr., but a flight-lieutenant.
	Trooper Griffin behaved with great courage, despite the fact that he was being paid a great deal more money every day than others of his rank and that he was in arguably the most prestigious armed organisation in the world. None the less, he had the courage to approach his commanding officer and say, "Enough is enough." I had similar instances, and I like to think that I dealt with them with fairness, kindness and compassion. I like to think that those are the watchwords of the commanders of our armed forces and that they deal not just with their own men, but with the Queen's enemies using the same rule of thumb.
	Let us not talk about desertion. Say a trained sustained-fire machine gunner, who carries the maximum firepower of his platoon, decides to absent himself—if he decides that he will not face the enemy, but would rather let down his mates—and that turns into desertion. I fear that we need to have the power to charge that man with desertion. The sentence in clause 8 is not a minimum sentence, but a maximum sentence. It has not been applied readily over the past several years. The plain fact is that if that man—it is, let us face it, likely to be a man—deserts from his unit, the punishment he faces from the men whom he let down will be administered in the back streets of Nottingham or Mansfield and military law probably needs to be in place to protect him from those whom he has let down.
	We need to have a penalty for desertion. The Bill would make military law stronger, but the amendments would do nothing to help the soldiers, sailors and airmen, and the officers who have to discipline them. In fact, the amendments would undermine discipline. I understand and respect the political points that have been made by Labour Members, but they are not applicable in this case. We run the risk of confusing an extremely important issue.

Chris Bryant: It is a great honour to follow the hon. Member for Newark (Patrick Mercer). I am sure that all hon. Members agree that he made a particularly fine contribution to the debate. I disagree with him on only one point. I know that he brings a particular expertise to the debate, but one does not have to have been a serving officer to understand how important the concept of desertion is for discipline in the armed forces and for making it clear to every serviceman exactly what they have signed up to.
	I also pay tribute to my hon. Friends the Members for Hayes and Harlington (John McDonnell) and for Leyton and Wanstead (Harry Cohen), although I am about to disagree with them. Both put their arguments with eloquence, but my hon. Friend the Member for Leyton and Wanstead did not seem to understand that the concept of "enemy" is quite well-defined. Clause 367, on page 185, makes it clear that an enemy is
	"all persons engaged in armed operations against any of Her Majesty's forces or against any force co-operating with any of Her Majesty's forces...all pirates; and...all armed mutineers, armed rebels and armed rioters".
	That is clearer than in previous statutes so my hon. Friend may want to reconsider that part of his argument.
	I wholly disagree with amendment No. 8, which was proposed by my hon. Friend the Member for Hayes and Harlington. Deletion of paragraph (c) of subsection (3) would have meant that during the occupation of Germany and Italy at the end of the second world war somebody could have deserted with impunity. My hon. Friend may respond that they would be covered by the provision in paragraph (a)
	"actions or operations against an enemy".
	In that case, what about people serving in Bosnia with UNFOR—the UN force? Over the last 10 years, our forces have operated under different operational commands at various times; none the less—certainly in the view of some people—they are in
	"military occupation of a foreign country or territory".
	I believe that they are doing important work, although in the near future we may want to reconsider the number of troops serving in the region, as normalisation steadily takes place in Bosnia and Herzegovina, and, in the fullness of time, in Kosovo.
	My hon. Friend's amendment would wholly undermine many of our existing operations around the world and those in which we might choose to engage in future. If the Committee chose either to pass the amendment, which is unlikely given the contributions that have been made, or if a large number of Members were to support it in a Division, it would send a message to our armed forces not of ethical surety—as I am sure my hon. Friend intends—but of ethical chaos. I hope, therefore, that no Members will support it in the Division Lobby.

Angus MacNeil: The Bill benchmarks draconian penalties for going absent without leave, which could occur in accordance with conscience due to the orders that the soldier was given. We must remember that orders vary according to the actions that Governments might want to take as a result of their international alliances. The proposed penalty is the maximum that has been benchmarked in our society. Indeed, if we went back to the days of world war one, we would have the ultimate penalty. Subsection 2(b) refers to someone who
	"intends to avoid any particular service or kind of service"—
	that is the nub of it—because he or she does not agree with the Government of the day. If we go back perhaps to 1930s Germany, a reasonable law could be passed by a reasonable Government; but, years later, we might not have a reasonable Government, and we would still have on the statute book a law that criminalises an awful lot of people.
	It is argued by some soldiers that they are entering into forms of bonded labour for a period of years. They volunteer before action; surely, they have the right to volunteer after action and not in any way to be subject to life in prison. We have the concept of just war, and importantly, we have the Nuremberg principles of the 1950s, which placed a responsibility on each person engaged in a war to assess for themselves exactly the orders that they receive.

Angus MacNeil: It is not for me to speak about the legality of Adolf Hitler's war, but it is certainly for me to stand up for soldiers. Having spoken anecdotally to several forces personnel, it would seem that few of them know much about the rights of conscientious objection. The Bill will set as a benchmark, for going absent without leave, viewing war as unjust or even changing one's mind, the penalty of life in prison. As the hon. Member for Hayes and Harlington (John McDonnell) pointed out, desertion has trebled since the Iraq war. The USA has about 6,000 people going AWOL.

Robert Flello: As part of the armed forces parliamentary scheme, I recently had the opportunity to take part in a dawn attack exercise on Salisbury plain. We were in the back of a Saxon armoured personnel carrier at four o'clock in the morning—albeit on an exercise—and we were reliant on two guys, one on either side of the vehicle, each with a light anti-tank weapon. In a war environment, I would like to know that those guys were there with their light anti-tank weapons defending the vehicle, rather than thinking that they may decide, according to their consciences, at four o'clock in the morning, that it was all a bad idea. What is the hon. Gentleman's view on a squaddie—if I may use that word—lying there with a light anti-tank weapon, thinking to himself, "Two years isn't so bad. Let's slope off home and not lie here at four o'clock in the morning in the cold."?

Angus MacNeil: As one of the supporters of the amendment, I was just looking back through the notes of my speech and I do not think that I mentioned Iraq once. The amendment was not about re-running the issue of the Iraq war; it was about making sure that service personnel are not faced with the draconian penalty of life in prison.

Si�n Simon: Exactly. There is a system, and it is of long standing. The hon. Gentleman speaks of it with knowledge and from experience. He spoke equally eloquently about the extraordinary seriousness of the offence of desertion.
	All that remains for me to add is to reiterate that there could have been a serious point. I think that we could have had a reasonable argument about whether a maximum sentence of life imprisonment is necessary in a modern Army, albeit that that maximum is not mandatory and is rarely applied. I regret that the supporters of the amendment have failed to take that opportunity and instead have chosen to re-run a debate that I do not think there is any point having anywhere any more. Certainly, this Committee and this Bill is not the place for it.

Mike Hancock: May I first, for the benefit of the hon. Member for North Durham (Mr. Jones), clarify the position as I see it on the Liberal Democrat Benches? We will support the Minister on this issue because we believe that it is the only sensible way that any military force, which is made up of volunteers, can operate. That is not ambiguous. It is not open to contradiction. It is crystal clear where we stand on the issue.
	I congratulate the hon. Member for Birmingham, Erdington (Mr. Simon). He made the point that a war, or action by our armed forces, is legal when this placethe Houseaccepts a proposition that we should send our armed forces into harm's way to fight on our behalf. They then have a clear, legitimate duty to uphold what they have signed up to do, which is to fight on our behalf, following a request from a democratically elected Government. Others, me included, may feel that the Government misled the nation on the pretext for going to war. However, that does not excuse members of the armed forces from obeying a direct order from Parliament that puts them in harm's way.

Mike Hancock: No one in the international community has made the case that the action taken, with which I did not agree, was illegal. Kofi Annan and others have voiced their opinion, but it is simply an opinion. The Chamber voted, against my wishes, to send our armed forces into harm's way, and they have served with credit to themselves and to the nation. The hon. Members for Rhondda (Chris Bryant) and for Newark (Patrick Mercer) spoke with great eloquence about the issues. It is not a question of whether or not a life sentence should be imposed for desertion. I should like to know whether the Members who support the amendment know how many members of the armed forces in the past 25 years have stood trial for desertion, how many have been sentenced to life imprisonment and how many have served more than 10 years in prison for the act of desertion. Not a single Member has told us the answer.
	Can the Minister tell the House how many of the 250,000 people who have served in our armed forces since we invaded Iraq have cited as their reason for leaving disquiet and discomfort at what they consider to be the illegal actions they were asked to carry out? The House would be interested to know whether there is any evidence to support the claim that a huge phalanx of people have left the Army because they did not like what they were asked to do in Iraq. There are many reasons to be critical of the Government's actions, but I cannot find any in this case.

Pete Wishart: I have no reason to doubt what the hon. Gentleman said about the many people who have been charged and given life imprisonment, or even spent 10 years in prison. Why, therefore, do we need this piece of legislation?

Mike Hancock: If my children's lives were on the line as the result of an act of cowardice and desertion by one of their colleagues, or if that colleague put their lives at risk with a harmful action, they ought to suffer the full consequences of the law. It is not for me to judge whether they should receive a life sentence or two, five or 10 years' imprisonmentthat is for the system to decide.
	The hon. Member for Newark spoke about commanding the largest battalion in the country of more than 900 soldiers for two and a half years on two active service deployments. One soldier could have faced court martial for something that could be construed as desertion. If we were on the receiving end when someone deserted their post, and if their action took our lives or the lives of our comrades, would we honestly not expect anything more than a slap on the wrist or a two-year sentence for an individual who chose to disregard their responsibilities to the unit, let alone their responsibilities to the country?
	The Bill gets it right. Parliament should not allow any ambiguity in the way in which members of the armed forces can interpret their responsibilities, as that would be manifestly unfair to the men and women who daily put their lives on the line. It would be unfair to suggest that they can pick and choose, as they cannot do so. The hon. Member for Newark explained with a great deal of eloquence how the unit would dispense its own version of fair and just punishment if a colleague acted in such a way. I do not wish to suggest for a minute that that is correct, as military justice should be seen to be fair and should be administered properly.
	Members of the armed forces should not be left in any doubt about the consequences of their actions. A sentence that may be for life is exactly that. Every court in the land has discretion in the determination of most sentences. I was concerned about the sentences meted out today to the three men who killed the young black lad in Birmingham last year. The judge recommended 25 years, but I am sure that if I was the parent of that young boy, 25 years would not be anything like long enough. We must judge these things on what we would expect if our sons and daughters were put in harm's way. We must ensure justice for them as much as for anyone else.

Mike Hancock: Once again, the hon. Gentleman is trying to confuse the Committeebut it is he who is wholly confused about the issue. There is nothing in international law that has proven that there are currently, or have been in the past 10 years, British armed forces engaged in an illegal action. No international court anywhere has found any member of the British [Interruption.] The international court of public opinion is a different matter from the court of law about which the hon. Member for Leyton and Wanstead speaks. I am not cavalier about it; I am extremely concerned that the men and women who do their duty on behalf of this country know that they have the backing of the country for their actions, and that they are engaged in lawful business.
	We have had soldiers in Sierra Leone, Bosnia and several other parts of the Balkans, Afghanistan and Iraq. I do not believe that a significant number of those wanted to become conscientious objectors. If they had wanted to do so, we would know about it. We have a clear indication from the Library of the number of members of the armed forces who sought to become conscientious objectors. We would also know because we regularly meet members of the armed forces.
	I met somebody who was decorated for bravery during the past five years. He did not agree with what the Government had asked him to do, but went and did his duty, knowing in his heart that he did not believe that it was the right thing to do. He was a member of the armed forces and, in his view, he was not in a position to cherry-pick the missions that he served on. He did his duty. He could, as he said to me, have opted to leave the armed forces, but he chose not to do so. He chose to do his duty.
	The hon. Member for Hayes and Harlington (John McDonnell) said, in the one part of his speech with which I did not have some sympathy, that when the history of what has happened is written, the real heroes will be those who refused to fight the war. That does a great disservice to the men and women who are daily putting their lives on the line for this country.

Richard Benyon: Does the hon. Gentleman not understand that we are going down a long avenue of irrelevance here? This is a question of military discipline; it is not a matter of decision as to the merits or demerits, or the legality or illegality of his perception of a particular war.

Alan Simpson: I accept that, but I am saying that the argument about a war being legal just because we say it is legal is a dangerous path for this Committee to be led down, and it is not relevant to amendment No. 9. What is relevant is to question the legitimacy of the Committee setting a parameter of life imprisonment to the penalties for a refusal to obey an order in relation to desertion, when the guidance notes say:
	the maximum is life imprisonment if the offender deserts when on service, or under orders to go on service.
	The question is whether it should be appropriate in this day and age, in this Bill, which the House is passing now for the foreseeable future, to retain a life imprisonment parameter for a refusal to go on service.

Bob Russell: Will the hon. Gentleman confirm that his maximum would be two years, and thus with good behaviour it could be as little as one year, or a maximum sentence?

Si�n Simon: Whether one takes that point, surely the problem is that the amendment does not account for the other end of the spectrum; it does not make the distinction between the much less serious offence of going absent without leave and the much more serious offence of desertion. In giving the same penalty for absence without leave and desertion, the amendment completely fails as a piece of law to make a very important distinction. Regardless of what happens at the top, what about what happens at the bottom?

Patrick Mercer: At the risk of sounding like a stuck record, the hon. Gentleman has neglected to understand that we have regular volunteer forces which are frequently on operations. Almost everyone I know in the forces spends up to six months every year away on operations. Everybody understands that if they have a moral difficulty with the orders that they have been given, they can represent their views to their commanders in a responsible way. Those who choose to let down their comrades by simply going absent and then deserting need to be discouraged, and we need a serious tariff to deter them.

Alan Simpson: Sadly, poorly thought through legislation is increasingly driven through this House, which leaves another place to tidy up by using its common sense, so this would not be the first occasion on which that has happened.

Alan Simpson: Let me come back to the hon. Gentleman with the current information about penalties and figures. As regards his comments about Labour Members not coming up with figures about the sentencing of those tried and imprisoned for desertion, that is not for lack of trying. Some of us have been trying for several weeks to get that information out of the Ministry of the Defence or the Library, but it has not been possible to obtain it. I understand from some of my hon. Friends that members of the Defence Committee also tried to obtain it but were unable to do so. That is not an act of negligence on the part of those who are trying to make a different case.
	One of the things that was distinctly different in relation to the trial of Major Florian Pfaff in Germany was that although he and other members of the armed forces had to go through the court martial, at the end of that process they had a right to appeal to a civil court. The civil court overturned the court martial judgment on the major that resulted initially in his demotion. The arguments that he used were entirely about whether some of the orders that he was given were illegal orders relating to the preparation of weapons systems for use in the war on Iraq. Even the German civil courts were unable to question that, but they were able to rule on whether the major clearly, legitimately and conscientiously held those views. On that basis, they ruled in his favour.
	Nothing of that type is proposed for inclusion in this framework for our own armed forces. When Flight Lieutenant Malcolm Kendall-Smith attempted to use similar arguments about refusing to serve in Iraq, believing that the orders were illegal, he was told that he was not allowed to have that considered because the Attorney-General had ruled that it was legal. He was not allowed to ask whether the Attorney-General had made that ruling before he knew that there were no weapons of mass destruction, that no uranium was coming into Iraq for enrichment, or that there was no prospect of the UK being under threat and targeted within 45 minutes. None of that was challengeable.
	We should be using this opportunity to open out the legitimacy of rights to contest decisions and orders. That particularly concerns me in relation to the provisions on refusal to serve in an occupation, which refer not to a legal occupation but merely to an occupation. Members who say that that is not specific to Iraq or to any particular existing conflict are right. We need to be clear about our interpretation of this. Are we saying that irrespective of whether a conflict is legal, a refusal to serve should carry with it the prospect of a sentence of life imprisonment?

Alan Simpson: I confess that we have had some interesting discussions on the Labour Benches about the interpretation of different clauses. It is clear that even those who support the wording as it stands recognise that there is considerable scope for confusion in interpreting the provisions. The guidance notes do not necessarily support what the Under-Secretary says. The Government have several opportunities in the Bill's remaining stages to table amendments to clarify the matter. However, it is important that we recognise the rights of serving men and women in the conflicts in which we have placed them. The point at which one crosses from legality to illegality is far from clear.
	We currently say that the occupation of Iraq is under a legal mandate of the United Nations. However, what do we do when, following the recent incidents in Basrathe part of Iraq in which the United Kingdom is operationalMohammad al-Waili, the Governor of Basra, said that British security control prevented the provincial government from purging the security forces of militia members? That was evidenced by the fact that Iraqi security forces had to defend UK troops against attacks by Iraqi civilians. It is understandable that serving personnel in those circumstances start to question the point when we cross from a legal mandate to an illegal occupation.
	Our proposal does not give people a get-out-of-jail card. It does not mean that they can take whatever action they like, depending on the state of the weather or whether they have a hangover. We are considering whether there is a tariff system for the available punishments in the armed forces that relates to the current duties of our serving men and women and which makes sense to the general public.

Alan Simpson: I do not want to be trapped into trying to define the point at which an action is legal or illegal, or the tariff system that should follow a refusal to serve in specific circumstances.
	I believe that we must step back and provide that it is wrong to have a carte blanche presumption that the upper limit of the sentencing range should be life imprisonment. Those who are killed in modern wars are primarily not other soldiers. The second world war was probably the turning point in that regard. In modern wars, there is much more collateral damagethat is the modern phrase; it really means civilian casualtiesthan killing of combatants. It is therefore perfectly legitimate that our serving personnel should have a right and a duty to exercise their judgment about the point at which the threshold is crossed. That does not meant that they should walk away from their decisions with no consequences, but we need to define different parameters.
	I would like to tell the Committee about the parameters that exist elsewhere. In Austria, the maximum sentence for desertion is one year; in practice, it is usually between two and six months. In France, desertion in peacetime is punishable by up to three years imprisonment

Gerald Howarth: We have debated this matter for about an hour and a half, and I am bound to say that Eric Forth would have approved of Parliament holding the Government to account in this way. I therefore make no complaint about the time taken to discuss these matters. Indeed, we have had an extremely good debate.
	I should like to pay particular tribute to my hon. Friend the Member for Newark (Patrick Mercer), who undoubtedly brings real experience to the House and is prepared to share it with us. We should not take his advice lightly. I should also like to pay tribute to the hon. Member for Rhondda (Chris Bryant), who is unfortunately not in his place at the moment. This was perhaps the only time that I have entirely agreed with everything that he said. That will probably do him more damage than me, but still
	I also salute the hon. Member for Stoke-on-Trent, South (Mr. Flello) for his interventions. Both he and the hon. Member for Rhondda demonstrated the value of the armed forces parliamentary scheme, whose tie I happen to be wearing today, in case the Minister had not noticed. Their contributions, as well as those of others who did not mention that they had taken part in the armed forces parliamentary scheme, illustrate the great benefit that that scheme brings not only to Members of the House but to the armed forces.
	I also welcome the Minister to his new position and congratulate him on his post. He has had something of a baptism of fire in having to deal straightaway with a 300-clause Bill, which has a huge amount of detail. We wish him well, and I am trying to assist him. Clearly, the fire is coming at him from his Benches rather than from the Liberal Democrat Benches, and it is certainly not coming from the Conservative Benches.

Gerald Howarth: There is a whole system of military law that is designed to ensure that those who break the law in the fashion that the hon. Gentleman sets out are brought to account. Indeed, a number of cases are currently before the authorities for that precise reason. With that intervention, I am afraid that he blows his case straight out of the water.
	Serving in Iraq is neither immoral nor illegal. As the hon. Member for Hereford (Mr. Keetch) said, that war and the subsequent deployment there are illegal under neither United Kingdom nor international law. The deployment in Iraq is supported by United Nations resolutions, and the Attorney-General has reported that the United Kingdom's actions in Iraq are not illegal.
	Let me remind the Committee of an interesting moment, when the Chief of the Defence Staffthen Admiral Sir Michael Boyce, now Lord Boycespecifically asked on behalf of every serviceman and servicewoman under his command, that is everyone in uniform, whether the war was legal. He obtained that assurance from the Government. He was right to obtain it on behalf of all who served in Her Majesty's armed forces, and from that time onwards every person in Her Majesty's armed forces was protected.
	Perhaps the Minister will be able to confirm that it is unlikely that the maximum sentence would ever be imposed, and that the most serious punishments would relate to desertion from one's post and putting the lives of one's comrades in danger in the way described by my hon. Friend the Member for Newark (Patrick Mercer). I am sure we all agree that it is absolutely right and proper for us to ensure tonight that in such cases a suitable punishment is available. It would be a dereliction of our duty to protect our armed forces if we removed the possibility of life imprisonment for desertion in the circumstances outlined by my hon. Friend and alluded to by others. I therefore hope that the Committee will reject the amendment and support the Bill as it stands.

Tom Watson: I thank the hon. Member for Aldershot (Mr. Howarth) for his kind words. I must say that when I walked into the Chamber and saw the massed ranks of the socialist Campaign group of Labour Members ready to do battle, for a split second I felt like deserting my own post; but my commanding officer sitting on my left, my right hon. Friend the Minister of State, stiffened my resolve, as he would then have had to respond to the debate.
	The debate has been very informative. The speech that I will pick out is that of the hon. Member for Newark, which was incredibly well-informed and orotund; the argument moved on much further following his contribution. It has been a debate about definitions, and I am anxious to clear up the misunderstandings over the changes that we have made to the offence of desertion.
	Clause 8 preserves the offence of desertion, but makes two important changes to the existing offence. I shall describe them in a moment. Under the clause, a serviceman deserts by absenting himself with the intention of never returning to duty, or by absenting himself in order to avoid relevant service. Relevant service is defined as
	actions or operations against an enemy...operations outside the British Islands for the protection of life or property; or...military occupations of a foreign country or territory.
	The definition essentially reflects the definition of active service in the current service discipline Acts. Those are the most critical and potentially hazardous duties for service personnel, so the offence is all the more serious when the intention or effect of the serviceman's actions is to avoid that relevant service.
	Amendment No. 8 seeks to redefine relevant service to exclude operations outside the British Islands for the protection of property or military occupation of a foreign country or territory. Amendment No. 9 seeks to reduce the maximum sentence for desertion to two years' imprisonment in all casesequivalent to the maximum sentence for absence without leave, as was pointed out by the hon. Member for Newark.
	I listened to the arguments advanced by my hon. Friend the Member for Hayes and Harlington (John McDonnell), and I think that they were put honestly and coherently, but, frankly, I disagree with him. Under existing provisions, the definition of desertion refers to going absent with the intention of never returning to duty, going absent to avoid any service overseas, or going absent to avoid service when before an enemy. All those attract a maximum sentence of life imprisonment.
	That definition includes going absent to avoid a posting to Germany, training in Canada or a detachment to Cyprus, as well as the types of relevant service that I have described, simply because it involves service overseas. Under the existing law, if a soldier avoids a short posting to Germany with his unit because he is having trouble with his girlfriend and wants to sort things out, he is in theory guilty of desertioncarrying a maximum sentence of life imprisonmenteven if he intends to return to duty.
	Our first change is to restrict the offence to exclude that unfairness. It will not cover any service overseas, only relevant service. Our second change is to reduce the current maximum sentence of life imprisonment to a maximum of two years, except when desertion is to avoid relevant service. Under the current law, the maximum is life imprisonment in all cases.
	Members will appreciate that the operations involved in relevant service are of the greatest importance. When such operations are involved, every member of the forces must have complete confidence in the other members of his unit, not least because the operations are dangerous and demanding. Those who avoid such service increase the danger to their colleagues, and damage morale. In a disciplined fighting force, that is totally unacceptable.
	Even in the days of compulsory military service, the law reflected the particular seriousness of avoiding such service. It is, if anything, even more serious in a professional volunteer armed force for there to be a distinction between types of dangerous service of the kind proposed by my hon. Friend.
	I hope that I have explained to my hon. Friend what we are trying to do in clause 8. I hope he will accept that the scope and definition of the offence is new but far less severe than it was before, and that the true position is the reverse of what he has asserted.

John McDonnell: Best to end when one is winning.
	The message for the Government is that a significant body of Members in Committee, regardless of party, believe that life imprisonment is a disproportionate sanction in such cases.  [Interruption.] I said that a significant body agree; there will of course be others who disagree. I am not asking for consensusyet.
	The discussion has centred on the argument that this is a modern, volunteer and professional Army. My hon. Friend the Member for North Durham (Mr. Jones) said that if it was a conscript Army, that would be a different matter altogether and life imprisonment most probably would not be appropriate. There is no difference between us, and if we ever move toward a conscript Army, we will need to debate the matter, because I agree that such a sentence would not be appropriate. However, a modern, volunteer, professional Army should not be motivated by fear of the sanction of life imprisonment, either.
	This legislation fails to show a modern understanding of why people desert. They desert because of fear or trauma, or out of conscience, and we should accept that. We should not penalise them with life imprisonment; we should accept that it is a disproportionate sanction, not the appropriate one.
	It has been argued that we cannot allow individual soldiers to exercise a right of veto over action, but the reverse is the case.

Gerald Howarth: I want to raise only a small technical point that has arisen since our lengthy discussions in the Select Committee. I want to express some of my concerns, and those of others involved in flying activity, about the clause. The provision states:
	A person subject to service law commits an offence if...he flies an aircraft so as to annoy or be likely to annoy any person.
	We can all conceive of a great many people who would consider any form of flying as an annoyance, so the number of prosecutions could be extensive. In the Select Committee, I was assured that no such prosecution would lie unless the conditions set out in paragraphs (b) and (c) of subsection (1) applied, in particular that the person flew recklessly or intentionally to annoy.
	It is important that the Royal Air Force has protection for its low-flying training, which is critical so that our pilots can be trained to carry out the operations that they have undertaken with such spectacular and conspicuous gallantry and effectiveness. If they cannot fly low without the risk of arraignment, the provisions are not right. I am assured by people well-versed technically in such matters that RAF pilots are safe.

Gerald Howarth: Indeed. I can assure my hon. Friend that I am about to speak at greater length about the Army Air Corps.
	An ex-military aviatora soldier of 35 years standing, who is now the airfield manager at Middle Wallop, but has 5,000 hours as a helicopter pilot in the Army Air Corpshas drawn to my attention an anomaly in paragraph (b), which deals with punishments. An officer guilty of causing an annoyance by flying can be punished only by loss of seniority or by a fine, but a non-commissioned officer may be sentenced to two years' imprisonment. As many Members know, the pilots of the Army Air Corps are predominantly NCOs, as was the case in the RAF during the second world war, although not nowadays. It has been suggested that the penalty for a proven offence may discriminate against NCOs in the Army Air Corps. Can the Minister comment on that? I realise that that may be difficult as he is new to his post.

Gerald Howarth: The clause deals with the inaccurate certification of equipment. We are concerned that the Government have not looked adequately at the discrepancy in the application of the offence between the Navy and the RAF on the one hand and the Army on the other. The Bill makes it an offence to certify inaccurately naval and air force equipment but not Army equipment.
	My hon. Friend the Member for Salisbury (Robert Key), who raised that point in the Select Committee, apologises for not being at the debate. He is not in the Chamber for good and bad reasons; the good reason is that he has had the operation that he has wanted for many months. I am sure that all Members will wish him a speedy recovery and highly increased mobility. I suspect that he may be watching our proceedings so we can convey those good wishes instantly.
	In the Select Committee, the hon. Member for Islwyn (Mr. Touhig), then the Under-Secretary of State for Defence, said that my hon. Friend had made an important point. The hon. Gentleman said:
	I am conscious of the fact that I have not really answered it sufficiently well.[ Official Report, Select Committee on the Armed Forces Bill, 20 March 2006; c. 37.]
	He clearly wanted to hand that task to the Under-Secretary of State for Defence, the hon. Member for West Bromwich, East (Mr. Watson) as an opening coup, so that he could deliver some satisfaction to the Opposition. I hope that the Minister will consider that point.
	If we do not encompass Army equipment as well, someone who fails accurately to certify an air-to-ground missile could be put on a charge, but someone who fails adequately to certify a ground-to-air missile would not have committed an offence. It is a small point; but, none the less, as we are reviewing all the legislation in this respect, we ought to take the opportunity to try to sort it out if that is necessary.

Julian Brazier: I welcome the opportunity to speak to the clause because it raises issues that go to the heart of the one really major defect in the Bill. I pay tribute to my hon. Friend the Member for Aldershot (Mr. Howarth), who fought his corner in the most doughty wayI should say not his corner, but the corner of the many people in the middle ranks of the armed forces who believe that a profound mistake is being made in the clause. He worked so hard in the Select Committee that that rare event, a tied vote, occurred. The amendment was not made only because of the Chairman's casting vote. That prevents us from tabling that amendment to the clause in this Committee of the whole House. However, we have an opportunity to discuss the issues in a clause stand part debate. I hope that if we do not manage to reverse things here, they will be sorted out in another place.
	It is a sombre time for the armed forces. Week after week we hear the Prime Minister at Prime Minister's questions expressing sorrow at the deaths of more service personnel. I hope that it is in order for me to mention the death of Sarah-Jayne Mulvihill, who was educated in Canterbury and whose parents live just outside Canterbury. She was serving in the Air Force when she was killed, but she started her military service in the Territorial Army in the 3rd Battalion the Princess of Wales's Royal Regiment in Canterbury. Those in our armed forces and their parents, wives, husbands and children look to the Committee to support them.
	At this late stage, following the points made by my hon. Friend the Member for Aldershot, I seek to persuade the Committee to understand why the clause is so badly flawed. I want to look at it from two angles. First, I want to try to show in general terms the damage that it does to the way in which the train of command operates, and secondly, I want to consider it specifically in the context of events in Iraq and, potentially, other theatres.
	On the chain of command, Lord Boyce commented:
	we interfere with the unique linkage between the commanding officer and his men at our peril. [ Official Report, House of Lords, 14 July 2005; Vol. 673, c. 1235.]
	In the Select Committee, the Government made much of the support of the current chiefs of staff for the proposal, but any current or former chiefs of staff would say that they can only be as good as the chain of command beneath them. It is an old adage that a chain is as strong as the weakest link. All aspectsall levelsof the chain of command have to operate and have to feel confident in the system for it to work properly.
	We should all be concerned at the news in the Sunday papers over the weekend that a group of officers appears to be in the process of setting up a staff association to represent independently the views of the middle ranks. I do not applaud that and I certainly do not blame the chiefs of staff for that, but the Government should ask themselves whether the habit that has grown up during the life of this Government of constantly publicising the views and role of the chiefs of staff in a way that would never have happened a generation ago is healthy for the armed forces. In the old days, advice to Ministers was treated as confidential.
	The Government's explanatory notes on the clause state:
	Its purpose is to ensure that serious cases are seen by the DSP but that all other cases are passed to the CO.
	They go on to say:
	Subsection (2) requires that a service policeman who considers that there is sufficient evidence to charge the person with a Schedule 2 offence (i.e. the most serious offences) must refer the case directly to the DSP.
	Therein lies the rub. In plain English, the clause boots the commanding officer right out of the picture; it is not just that a commanding officer's power to dismiss charges is being removed. In Select Committee, the Government refused a moderate amendment that would simply have allowed the commanding officer to be consulted, which was supported by the Conservatives, the Liberal Democrats and one Labour Member.
	There is enormous sympathy on both sides of the House for the work that our armed forces do. Imagine for a moment the position of a member of the armed forces. In a different context, I used to talk about a man who was frightened, tired and cold, but it would be more appropriate to talk about men and women in Iraq being frightened, tired and hot, which is not always the best framework in which to make decisions. The one safeguard that such people had in the past was the knowledge that before they could be charged with a serious offence, someone who really understood what they were going througha commanding officerwould first have the chance to examine the situation and, if necessary, dismiss the charge. The clause not only removes that safeguard, but goes further by preventing service policemen from even consulting the commanding officer before sending charges forward.
	A great deal was made in Select Committee about the Trooper Williams case. The Committee will recall that Trooper Williams stopped an enemy terrorist who was found to be carrying a large quantity of ammunition at a road block. When the man ran off, Trooper Williams, at some risk to his own life, pursued him and, eventually, shot him to stop him getting away. The commanding officer dismissed the charges against Trooper Williams. When the Attorney-General referred to that fact, he said:
	The matter could not, because of the actions of the commanding officer, be dealt with by way of court martial. It was referred to me to consider further action.[ Official Report,  House of Lords, 7 April 2005; Vol. 671, c. WS 92.]
	The then Under-Secretary of State for Defence, the hon. Member for Islwyn (Mr. Touhig), commented:
	Discipline is essential and we depend on service law to enforce it.
	Astonishingly, on the basis on that one case, which was subsequently thrown out by a court martial, the ancient protection for our armed forces is to be thrown out lock, stock and barrel.
	It is extraordinary that there is such a vigorous programme of trying to bring prosecutions against members of our armed forces on the basis of a very small number of cases of abuse. That is happening to such an extent that the Judge Advocate-General made much-publicised comments last autumn when the case against soldiers from 3 Para was thrown out at the beginning of the court martial.
	The second strand of my argument relates to the specific circumstances of Iraq. Sadly, in time, al-Qaeda and others that provide plenty of networking will no doubt read across those circumstances to Afghanistan. With clause 116, the Government are essentially opening up a fresh route by which organised terrorist enemies may attack our armed forces, although they bomb and shoot our armed forces at the moment and try to set fire to their vehicles. The clause effectively guarantees that if false allegations are brought against members of our armed forces, they are bound to be considered seriously all the way up the system. Let me quote Lord Boyce again:
	The Armed Forces are under legal siege ... They are being pushed by people schooled not in operations but only in political correctness.[ Official Report, House of Lords, 14 July 2005; Vol. 673, c. 1236.]
	Those are damning words indeed from an outstanding head of his profession.

Kevan Jones: I support clause 116, the matter having been rehashed for many hours in Committee. I usually listen to the hon. Member for Canterbury (Mr. Brazier) and I have a lot respect for him, but he has fallen into the trap that, unfortunately, a lot of people have on this clause. The myths that are being perpetrated by former members of the general staff are not doing them any credit.
	The hon. Gentleman referred to Lord Boyce. I would like to take a little time to remind the Committee of exactly what he said in the Select Committee. It may be easy to say in the comfort of the Chamber or in a newspaper that our armed forces are in a legal entanglement and cannot operate anywhere because lawyers are looking over their shoulders, but I deal with facts and I have tried to find examples of cases that have been so disproportionate in their effect that it would endanger the way we operate. I have not found one yet. I will refer to the case that the hon. Gentleman mentioned in a minute.
	I pressed Lord Boyce on the issue. I asked him:
	When you were operational were you aware of any situations which hindered the chain of command? Do you know of any examples?
	He replied:
	I commanded from the age of 28, from lieutenant through every rank up to admiral, but fortunately most of my time in command was before the culture we have today started to become as pervasive and intrusive as it has done. I personally do not ever recall being troubled by that sort of compliance.
	People who know me know that I would not leave it there. I said to him:
	You have said again 'this culture that is there'... It is easy to say.
	I then asked him whether he could find any concrete examples. He replied:
	I do not have any which I can give to the Committee, Chairman. I have to say what I have is hearsay but I am aware there are lawyers out there who are looking for business and I believe encourage the sort of litigious cases that we see.
	I am sorry, but I find it very irresponsible for a former chief of staff to put forward innuendo. He could not come up with any concrete examples that our armed forces are being ensnarled by legal restraint.
	I have heard that there are lawyers ambulance chasing for cases in Iraq. I will condemn them out of hand if there are such individuals, but please come forward with examples. Lord Boyce did not do himself any favours in not being able to come up with hard facts. He relied on innuendo and, by his own admission, on hearsay.

Don Touhig: I remember the questioning that my hon. Friend pursued in Committee. Does he remember when he pressed Admiral Lord Boyce about suggestions that our forces were now risk averse? I commend to the Committee Lord Boyce's response:
	I am sure that we all could play a better role in trying to dampen down this particular worry, and people like myself who are sometimes standing up and speaking in the House of Lords debates and so forth perhaps need to re-look at how we are saying things in order not to fuel anxieties of that nature.

Kevan Jones: I am grateful to my hon. Friend for that intervention. I totally agree with what he has said. Lord Boyce and others need either to shut up or to come up with actual facts. They are in danger of perpetuating myths not just in newspapers but to front-line servicemen, who think that there is some constraint there when there is not. I have first-hand experience of talking to soldiers in Iraq where that mythology is seeping through. If that is what Lord Boyce and others are doing, they are doing modern-day servicemen a great disservice.
	The hon. Member for Canterbury said that the commanding officer's right to dismiss a charge was an ancient protection and a legal safeguard. I am sorry, but I do not see it as either. I think that the clause will strengthen the role of the commanding officer.
	Commanding officers can already, if they wish, bring in the police to investigate and take advice on cases. I spoke to service police during the Select Committee's visit to Cyprus. They rightly made the point that early investigation and collection of the facts lead to less delay in ensuring that frivolous and vexatious cases do not go any furtheralthough I accept that, in Iraq, people are dealing with situations that are very different from incidents in a barracks here, in Germany or in Cyprus. However, I think that the clause will strengthen the role of the commanding officer in being able to draw upon the expertise of service police to ensure that the facts are kept together very early on. One of the reasons that we will never get to the bottom of what actually happened at Deepcut and those four deaths is that vital evidence was not preserved at an early stage to allow the real truth to come out.

David Burrowes: I know that the hon. Gentleman would wish to take an evidence-based approach. Where is the evidence that the present law is broken and should be fixed? The position was amended by Army regulations on 29 July 2004. The amendment states:
	Where a commanding officer considers that he may wish to exercise his statutory power to dismiss a charge under this provision he should first consult with his higher authority who in turn should normally seek
	other views. Where is the evidence that those regulations are broken and should be fixed? He refers to Trooper Williams, but can he referI asked the hon. Member for Islwyn (Mr. Touhig) the same question in the Select Committee, and am still waiting for an answerto cases that show that we should break with the current regulations, which seem to serve the Army well and help to retain the integrity of the commanding officer?

Kevan Jones: The Bill is about updating our laws. The year 2006 is very different from 1955. Today, we are far more litigious. There are far more questions about the way things happen. The clause will ensure that a commanding officer can have confidence that, once an investigation takes place, the facts will be brought together and they will be dealt with. If we do not have that, we will have more cases like that of Trooper Williams.
	There is a naivety in the press in looking at some of the Iraq cases. Having spoken to investigating officers on our visit to Iraq, I accept that it is difficult to gather evidence and information in some situations. Even in those cases, however, it protects the commanding officer and the accused if evidence is gathered early and if things are not dismissed out of hand, otherwise there could be accusations of a cover-up. Clearly, there was no such cover-up in the case that has been raised.

Kevan Jones: I am grateful to my hon. Friend.
	The measure allows the commanding officer, in certain cases, to submit evidence and information in mitigation. There is not a problem, and we did not take any evidence from service chiefs or commanding officers, both here and abroad, to suggest that it was. Former service chiefs could not provide any examples.

Kevan Jones: I am sorry, but the hon. Gentleman is not correct. As I understand it, the commanding officer could submit mitigating information to the prosecuting authorities before a decision is made to proceed with a case. That would prevent circumstances that were highlighted earlier from arising.

Kevan Jones: I think that it was in the evidence that we took, and it was one of the recommendations in the final Select Committee report to which the hon. Gentleman agreed.

Kevan Jones: I am grateful for that intervention, which clarifies the position. The commanding officer will not be left out of the loop, as suggested by the Opposition spokesmen.

Patrick Mercer: I forgot my manners earlier in failing both to welcome the Under-Secretary and to congratulate him on the excellent start that he has made.
	The hon. Member for Rhondda (Chris Bryant) made a powerful speech. He put me firmly in my place by making the point that, just because someone has not served in the armed forces, that does not mean that they cannot understand them. I could not agree morethe last thing that I want to do is to try to set myself up as someone who can lecture. All that I can do is bring my rather dated knowledge to bear on our proceedings. I salute the contribution of the hon. Member for North Durham (Mr. Jones), who has spent a great deal of time on armed forces matters without any previous service experience, although I disagree with him. Briefly, clause 116 attacks important relationships at unit level across the three forces. I hope that the Committee will forgive me if I limit my remarks to the Army, because that is where my experience lies. The rank of lieutenant colonel and its equivalent in the other forces is crucial, as commanding officers have powers at their disposal that are the acme, limit or horizon for the private soldiers, seamen and airmen who serve under them. To attack that relationship is to diminish those powers and take something terribly important away from the way our armed forces are asked to do their business.
	It is worth pausing for a moment to think about the circumstances that surround our armed forces in Iraq. It would seem that it is uniquea new theatre of operations; that counter-insurgency, counter-terrorism, peacekeepingcall it what you willare something new to our forces; and that this is not conventional war. However, precisely these conditions pertained in the 1960s and early 1970s before the armed forces got heavily involved in Northern Ireland. They were the anvil on which the Army Act 1955 was founded and subsequently amended to work at unit level.
	We have heard about the commanding officers welcoming the proposed changes to the Army Act or to military law generally. That is as may be. I was never faced with very serious crimes committed on active service, but I had some extremely difficult crimes to deal with inside barracks, and I would have loved to be able to say, Nothing to do with me, youth. You've got to go now into the military justice system and I don't have to make a decision about you, Private So-and-so. That would have been great; I would have loved it. It would have been a cop-out for me as the commanding officer. But that attacks precisely the relationship between the private soldier and the commanding officer of his unit.
	Let us bear in mind what we are talking about. The bulk of kids fighting in Iraq todaythey are kidsare aged about 18frac12; or 19. They come, for the most part, from very difficult circumstances. I was interested to hear earlier how the House regards these fine upstanding individuals and their ability to make decisions. They are fine upstanding individuals, but by golly, they come from difficult backgrounds, for the most part. It was my experience that they needed every bit of leadership, guidance and protection that their officers and non-commissioned officers could provide for them.
	That is why the regimental sergeant-major, standing outside what we called commanding officer's ordersin other words, a commanding officer acting as a magistrate inside barracks or on operationswould say to a private soldier, Are you guilty?, to which the private soldier would generally say, Of course I'm guilty. I daren't say I'm not. Clearly, that is nonsense. It was up to the commanding officer to say, as a soldier came in front of him to get summary justice, Look, son, you are now in front of a court of law. Just because you've gone through your platoon commander, your company commander and now your commanding officer, that does not mean to say that you are necessarily guilty.
	The private soldier depends on the commanding officer to be his advocate, his leader, his protector. The private soldier who is sleeping for four hours a day in two two-hour bursts, who one minute is being shot at by well armed terrorists and the next is expected to dish out food aid or whatever to injured and hungry civiliansthat man requires a lieutenant-colonel or his equivalent also to have had four hours sleep that day, also to be operating in conditions of 100 Fahrenheit, and also to be required to carry a 60 or 70 lb set of webbing.

Patrick Mercer: That is an extremely good intervention and a fair one. The commanding officer does not always need to dish out justice to the soldier, but he needs to examine rigorously every case before him involving any soldier, sailor or airman under his command. If he does not do so, he is failing the often simple souls who require that officer to give them that protection.
	That is what worries me so much about the idea of a service policeman being brought into the equation at such an early stage. I reiterate the point that I made to the hon. Member for North Durham. It would be a foolish commanding officer who, in the event of almost any other than a routine offence, did not quickly get legal advice and call in the Royal Military Police special investigations branch for their guidance.

Patrick Mercer: Again, that is an excellent intervention. The Trooper Williams case underlines it.
	I take the point that the hon. Member for Portsmouth, North (Sarah McCarthy-Fry) made earlier. As far as Trooper Williams was concerned, the commanding officer was his god. He was his figurehead of leadership, justice and everything that happened inside the 2nd Regiment, Royal Tank Regiment. If we attack that relationship, two things happen. First, the private soldierlance corporal and so onfeels that there is no longer an umbrella of protection given to him by a man whom he knows personally, who, within the constraints of rank, is a personal friend, and who has probably served with his father, his uncle or other people from the same areaPortsmouth, Newark or wherever.

Kevan Jones: The hon. Gentleman has just proved my point. Is he suggesting that in a very serious case, the judge and jury, even after a police investigation, should be the commanding officer? Is not the problemI am not sure whether the hon. Gentleman was still a member of the Defence Committee when we considered the Deepcut deathsthat excluding independent oversight at an early stage led to problems later? If the angel commanding officers whom he describes bring in investigators and legal authorities as a matter of course, what is the problem?

Patrick Mercer: Of course commanding officers are no angels. Of course their judgment is faulty. The problem will not arise in peacetime circumstances in barracks such as Deepcut, Tidworth and so on. In those circumstances, I agree that there is time for the Royal Military Police and others to be used to the proper extent. On operations, there is no time. On operations, one is driving hard against an enemy. We are not talking about the overthrow of the Third Reich. We are talking about peacekeeping operations where, one minute, one is face to face with the enemy, at bayonet length from the enemy, and the next minute one is trying to dress his wounds and give out food to his wife. It is in those circumstances that the commanding officer must have that sanction, where he can use his judgment. If he does not, the fundamentals are attacked.
	On my second point, I ask for the Minister's earnest consideration. The Army works on the principle of mission command. A commander takes an idea, decides what he wants to do, apportions missions to his subordinates and gives them the necessary resources. Unless the subordinate says that he does not have the necessary resources, the mission is entirely up to the subordinate commander. Part of that, particularly in these circumstances, means that the subordinate commander, in this case a lieutenant-colonel, must have the legal powers to deal with his soldiers in the difficult circumstances posed by places such as Iraq. If the commanding officer cannot deal quickly, effectively and legally with the soldiers under his command, to all intents and purposes a very important strand of tactical doctrine, namely mission command, is taken away from him.

Sarah McCarthy-Fry: I want to pick up on the hon. Gentleman's point that Trooper Williams looked to his commanding officer as his god, but the fact remains that he was let down, because he was then put into the civilian system. That is the point that this measure seeks to address. For precisely the reason that the hon. Gentleman gave about civilian judges and juries having no idea what it is like in the heat of battle, that is the last thing that we want our armed forces to have to do, as every soldier, sailor and airman to whom I spoke said. We are not talking about getting leave from barracks; we are talking very serious offences here. The hon. Gentleman referred to snap decisions, but it is not healthy that snap decisions should be made in such serious cases, which could end up in the civilian courts.

Patrick Mercer: I cannot, but I will hypothesise. Serving at a generally lower tempo of operations than what is going on inside Iraq, one of the warrant officers, second class, under my command, not, I hasten to add, from my cap badge, but from the Royal Military Police, attempted to murder his interpreter in the Serb republic. As his commanding officer, the case was referred to me. I immediately understood that it was a schedule 2 case, which had to be dealt with. I could not possibly say, in the circumstances, whether I should or should not have dealt with it. I immediately passed that on to the relevant legal authority. Had we been involved in a pursuit of the enemy at that stage, had we been involved in circumstances such as those in Iraq, I would have wanted the power to hand, so that I could reassure the private soldiers, lance corporals, under my command, that they would always be protected by someone whom they knew who understood the circumstances.

Patrick Mercer: I am afraid that the hon. Gentleman has not quite understood me. What I am saying is that in a high tempo operation, where things go wrong, and they will, the commanding officer must be able to carry out an investigation, take the advice that is to hand and deal with the matter as it faces him. If he does not, it will be very difficult for the private soldier under his command to continue to trust him.

Don Touhig: The hon. Gentleman has made an important contribution to the debate throughout the day from his experiences, but drawing on his experience, if at the height of an engagement there was an incident, perhaps such as the one he describes, would he not then ensure the success of the operation, the protection of his soldiers, and so on, and then get the matter investigated at a more peaceable time when it could be thoroughly considered, rather than take a decision in the way that he seems to be implying he would take one now?

Patrick Mercer: It is a hard question to answer, but I am doing my best to answer it as honestly as I can. I have never been in circumstances where there is a pressing series of operations, one after another, against a determined enemy, with pauses out of the line where one needs to deal with this sort of discipline. But my father and my grandfather did. They faced such operations. Neither was a commanding officer, but they were infantry majors, and they felt the need to be able to use summary powers to deal with similar serious offences. That was a long time ago. I can imagine circumstances where the commanding officer at a high tempo of operations will need those powers. If I may put the point to bed, those powers are important, they will rarely be used, but when they are used, as in the case of the commanding officer of 2RTR, they should not be challenged.
	My final point is that the relationship between a regimental commander, of whatever cap badge, and the police, is always difficult. It is difficult for people who have not served to understand the feeling of the regimental family. The regimental family is the building brick upon which the army is built. No matter what assaults are being made on that system at the moment, the fact remains that the battalion, 600 to 900 men, know and understand each other. Up until the new reforms that have been introduced recently, battalions could guarantee that they all came from the same territorial area. To introduce the Royal Military Police, or their equivalent, into the chain of command at this stage, is to cut away at the authority and trust that subordinate commanders have in their commanding officers. It will be a detrimental move if the Royal Military Police, or their equivalent, the service police, are used in preference to the commanding officer, who, as has been said, will always refer to the legal authorities. That injures the regimental relationship the same relationship as on a warship or an airfieldand I ask the Government to think carefully about the matter and to take it no further.

Richard Benyon: As is the way of things, my points have been eloquently made by my hon. Friends the Members for Canterbury (Mr. Brazier) and for Newark (Patrick Mercer), so I shall be brief and make just one or two further points. I am very concerned about the implications of the clause and the effect that it will have on the relationship between a commanding officer and those who serve them.
	The hon. Member for North Durham (Mr. Jones) made a good point about gangs of lawyers following our forces wherever they go as part of operations as being a perception that is not borne out in reality. I shall not stand here and pretend that there is an office of Matrix Chambers opening up in Basra and that our troops will constantly be harassed under human rights legislation. Nevertheless, we have to accept that we live in a much more litigious society, and our troops going on operations are daily faced with a greater threat of litigation. We know that untoward advances have been made to people in an area such as Basra and we have to be extremely careful about how we protect our forces in that context.
	Clause 116 is important in the context of alleged crimes committed by soldiers. Commanding officers understand more than anyone else the context in which an alleged offence may have occurred. I will not go through the details of the Trooper Williams case, because it was discussed at great length in Committee.

Si�n Simon: That is anachronistic and unrealistic. The hon. Member for Newark has said that the commanding officer is God in the eyes of the private. Is that not an unrealistic burden to place on the shoulders of the commanding officer? In this day and age, is it right that such relationships are illegitimate and unproductive, unless they are conducted between a God and a private soldier?

Si�n Simon: That is a false prospectus. The hon. Gentleman has said that there cannot be a situation in which the commanding officer is forced to say, I'm sorry son. You're on your own. That line is actually a given part of the transaction at all times. If some dodgy squaddie who has murdered an old lady turns up in the commanding officer's office and says, I'm sorry governor, I have just murdered an old lady, the commanding officer would not say, Don't worry Hughes, I will look after you. The commanding officer would say, I'm sorry son. You're on your own.

Richard Benyon: In his former position, the hon. Gentleman tried to move towards the view advanced by my hon. Friend the Member for Aldershot, but it is not good enough to put the point in written guidance, because it needs to be on the face of the Bill to provide the necessary security. The amendment tabled by my hon. Friend the Member for Aldershot sought to incorporate into the Bill the need for the commanding officer to be part of the process.

Julian Brazier: My hon. Friend has been confronted with the ridiculous example of someone who murdered an old lady, but there is the much more relevant example of someone who killed a young lady; Private Clegg, who shot a woman at a roadblock and was convicted because the case was tried through the civil process of murder. That judgment was overturned only after two appeals, but if the case had been considered in a military context from the beginning, it might well never have gone to court.

Kevan Jones: Does the hon. Gentleman agree that it is not just about a level playing field but about, first, giving the accused protection in terms of knowing that the alleged crime is being investigated properly and that the evidence has been gathered; and secondly, that if the prosecution goes ahead it is based on the evidence that has been collected near to where the crime was committed, whereas, if the case had been dismissed and reinvestigated later on, things might have been lost?

Mike Hancock: The hon. Gentleman is right. I am sure that his remarks are borne out by the hours of evidence that he took in the Armed Forces Bill Committee and in the Defence Committee. We have had that explained to us time and again. The Minister of State, who is in his place, has a lot of credit coming his way for genuinely believingI am sure that his new boss and the former Secretary of State share the same viewthat the duty of care is to our serving personnel and to their families, as well as to the victims of crimes that are perpetrated by members of the armed forces. It is not an exclusive club whereby the military only look after their owntheir duty of care goes way beyond that. That is what this clause of this much-needed Bill gets to the heart of, and the House should not be prevailed upon to go along with voting against its standing part.

Mike Hancock: I do not disagree. Of course, this band of brothers, for want of a better phrase, does need support, but it also needs the integrity of the law that says that it will treat it on an equal basis with the victims of any allegation that might be made against it. The public perception is that in so many of these cases the military are able to be their own judge and jury.
	The Surrey police report was a lesson that we can allow things to go unchallenged only for so long. It was a rather cosy coincidence that it was put forward so strongly that that all the issues were dealt with properly under the chain of command. It was obvious to the Surrey police that many of the men and women who gave evidence to them felt that they had been manifestly let down by the god of the commanding officer or the ability of the commanding officer to see through a fictitious allegation. Sadly, many of our armed forces men and women felt badly let down in that situation. The Bill will give them greater hope that there will be equality under the law and in the law as regards our armed forces.

Gerald Howarth: I shall not at this stage because the hon. Gentleman has quoted Lord Boyce enough and it is fair to put the noble Lord on the record.
	Lord Boyce also warned that tampering with military command could damage operational effectiveness. He said of a commanding officer:
	If you diminish his authority or start to erode his authority, you will have a fracture which is ultimately going to cause failure.
	That is the issue before us tonight. We must ensure that we do nothing that fractures that authority.
	After visiting those on deployment, the Select Committee concluded that there had not been much opposition in the Army to the Bill's proposed changes. Although I accept that, we must realise that proposals in the Bill have hardly sunk in at all in the military. I do not especially blame the Government. The guys are out there trying to fight a war and they have no time to start assessing the niceties of the legal position. Although the people to whom we spoke had been briefed, I suspect that some had been briefed only a little in advance of our visit. Some of the changes will take time to make an impact.
	As has been said, the change that the Government propose results partly from the Trooper Williams case, in which the commanding officer, on legal military advice, dismissed a charge of murder against Trooper Williams, who was said to have shot an innocent Iraqi. More senior military lawyers believed that the advice was wrong, but could not reopen the case and the Army high command felt under political pressure, in the grotesque phrase that Sir Alistair Irwin used, to offer for prosecution Trooper Williams. That could be done only through the civil courts.
	Sir Alistair Irwin said that with the
	current legal, political and ginger group interest in the deaths of Iraqi civilians during Operation Telic, there is a significant possibility that this case, our investigation and the subsequent failure to offer for prosecution could become a cause clbre for pressure groups.
	I have said it before, and I repeat that I find it reprehensible that a senior officer used the expression offer for prosecution about one of the men under his command. I do not believe that Pontius Pilate would have used that expression.
	At the instigation of the Attorney-General, Williams was charged but the case was dismissed by the civilian judge. The Government argue that the removal of the power to dismiss a serious charge will prevent a repetition of the Williams case. However, the commanding officer's judgment was vindicated. The case says more about the high command and the political pressures that led to Trooper Williams being offered for prosecution than about the power of the commanding officer to dismiss a charge. I agree with the Government that we must avoid such a case in the future. I am at one with the hon. Member for Islwyn, the former Under-Secretary, that we must find a way to keep such matters in the military domain and not leave them up to civilian courts.

Kevan Jones: Does the hon. Gentleman agree that, if the system for which the Bill provides was in place at the time of the Trooper Williams case, the police evidence would have been collected early and led to an informed judgment earlier that perhaps would not have meant the unacceptably lengthy process that he describes? If that had been done, Trooper Williams would not have gone through what he did.

Gerald Howarth: I do not agree with the hon. Gentleman. The facts prove him wrong. The commanding officer's original judgment was right. He did the right thing. He took legal advice and investigated, but some lawyer in uniform higher up thought that the advice given by the legal officer on the ground was wrong. We then had the farcewell, it was not a farce for Trooper Williams; it was a serious personal tragedy for him. It was a disgrace. We then had the disgrace of the case going through the military courts so that the high command could be absolved of failing to offer a soldier for prosecution.
	In the Select Committee, I suggested that there were ways round the problem. I suggested, as the hon. Member for Islwyn was kind enough to point out, that there were ways of dealing with it. The first option that I proposed would have given a commanding officer the power to dismiss charges, even when he would not have had the power to deal with them summarily, but would have incorporated the amendments to Queen's Regulations of 29 July 2004, which would require the commanding officer to seek the approval of his higher authority before dismissing any charge. That is the situation that prevails in Iraq today. As my hon. Friend the Member for Enfield, Southgate (Mr. Burrowes) suggested, that is the way the system works today, and I cannot see why we cannot replicate it in the Bill.
	This is a lost opportunity. I am sorry that the Government could not accede to our proposals, and I would like to put it to them again that they would reflect current practice, which appears to be working reasonably well. They would also address the problem, which we all agree must never arise again, of a charge arising from an event on operations during active service going outside the military domain and being dealt with by a civilian court that would not understand the military context. I hope that the Government will be prepared to look again at this measure in another place, particularly once they have heard the advice of the former Chief of the Defence Staff.
	In the meantime, however, I am disappointed that the Government were unable to accept the amendment that I tabled to clause 116, to which the hon. Member for Islwyn and others have already referred. My amendment would have required a service policeman investigating a charge against a member of the armed forces to inform that individual's commanding officer of any intention to refer the case to the director of service prosecutions. The amendment would also have made provision for the commanding officer to make his own representations about the case to the director of service prosecutions.
	I should like to explain to the Minister that that would have enabled the commanding officer to set the episode in the military context, so that the director of service prosecutions would have that information to hand. In a moment, I shall deal with the response that the hon. Member for Islwyn gave me in Committee, but first I want to explain this point to the Minister. I know that he is new to his post andI do not say this in a patronising sensehe has a huge amount to master. It seemed to be accepted by the Government that it was desirable that the commanding officer should have that input. We pressed the matter to a vote, and the Committee divided equally. It was only the Chairman's casting vote that enabled the Government to carry the day. However, I remain convinced that there should be a requirement that the commanding officer be informed.
	The Bill already reduces the power of a commanding officer to dismiss a serious charge against an individual under his command. However, to remove the commanding officer from the loop altogether would reduce his authority over his men yet further. We have heard powerful evidence tonight from a former commanding officer of the importance of the bond between men and their commander. The Committee would be ill advised not to recognise the force of the argument put forward by my hon. Friend the Member for Newark.
	The provision to allow a commanding officer to submit his own report once a charge had been referred to the director of service prosecutions would ensure that the assessment of the commanding officer, setting out the military context, was included in the director's assessment of whether there was a case to answer. The commanding officer would know the men under his command. He would probably have been present when the incident took place; if not, he would not have been far away. He would therefore bring not only more immediate knowledge of the military context but, most importantly, knowledge of the individual concerned.
	Will the removal of the safeguard of having the commanding officer in the decision-making process increase the chances of a serviceman being put on trial without adequate understanding of the operational circumstances? Lord Boyce said in the other place on 14 July:
	Command and discipline in the Armed Forces go absolutely hand in hand. A commanding officer, who has total responsibility for the command of his ship or unit, must, in turn, be responsible forand carry outits discipline. It is impossible to achieve and maintain the necessary level of discipline unless those under his or her command are in absolutely no doubt that their commanding officer has authority over them.[ Official Report, House of Lords, 14 July 2005; Vol. 673, c. 1235.]
	My hon. Friend the Member for Newark said that we must maintain that bond, and he was right.
	The hon. Member for North Durham has had great fun trying to suggest that the former First Sea Lord and Chief of the Defence Staff had somehow failed to provide adequate evidence to sustain his argument. I have referred to the risk-averseness that many people in the armed forces recognise. However, since the beginning of our proceedings, a document has come to light. It is headed Reinforcement of pre-deployment training in Iraq, and it was produced at the beginning of December by Major Whitelegge, who is SO2 Plans, following a survey that had been carried out among7 Armoured Brigade. It is disappointing that we were not told about its existence.
	One of the matters that the major was asked to examine was the reluctance to become decisively engaged when the rules of engagement clearly allowed them to do so. The findings were pretty emphatic.
	Confidence to open fire. All agreed that there was a certain British reticence to open fire, and that this was largely a positive feature at the start of an operational deployment... However, there remained a common belief that many soldiers lack the confidence to initiate opening fire when it is tactically and legally sound to do so. Reasons for this were given in the following approximate priority order:
	(a) fear of investigation. There is a widespread fear of being investigated for having opened fire, and of a protracted prosecution system that might ensue. Some believed that individual soldiers would not open fire as a result of this fear. More typically, it was felt that soldiers would open fire, but only within the strictest interpretation of the ROE...
	(b) Inconsistencies in ROE training. Throughout PDT
	that is, pre-deployment training
	units have received differing advice on what level of force is suitable in a given situation, usually due to different understandings of the imminency of the threat being faced by the soldier, or borne from experiences on other operations with different policies.

Gerald Howarth: I will not do so now, as I am trying to describe something. In that film, we saw guards on a ship at night, who heard a sound, and fire was offered. They went to investigate, and the enemy took off in an inflatable and were seen disappearing. The guards were not allowed to shoot them because they were not under immediate threat. One Member raised the point that while they were not under immediate threat, the enemy might have been about to offer immediate threat to some of their fellow servicemen. This is a difficult area, and the hon. Member for Islwyn is right to raise it. A lot more work needs to be done on that.
	To return to the substance, I raised the issue of the survey because it has already gone into the public domainextracts of it were published in  The Sunday Telegraph a couple of weeks ago. I have made inquiries among those who are currently serving, and I understand that a great effort has been made to try to encourage and build confidence among those on the front line that they might open fire with confidence. To the extent that that has been doneaccording to an insider whose word I trust implicitlyI am encouraged. I make no apology for repeating something that has already appeared in a newspaper, perhaps at greater length, as it illustrates the risk that we face if we do not back up our people, and how easy it is for them to lose the confidence that is essential if they are to be able to fight the fight on our behalf and to save their own lives. If they fail to open fire out of reticence and lose their lives, we will have betrayed and failed them, as the whole House will agree. We must get the balance of judgment right.

Gerald Howarth: Of course. I apologise. I accept that he and his hon. Friend the Member for Islwyn are committed to the armed forces. It is, however, imperative that we understand the culture of the military, and the vital importancementioned by my hon. Friend the Member for Newarkof ensuring that our people out there feel they have the support of not just the political commanders, but the chain of command.
	The hon. Member for Islwynthe former Minister whom the Prime Minister obviously thought too old to be veterans Ministersought to assure me that there would be detailed guidance. I do not doubt his word for a moment, but let me say this to his successor. Clause 116 clearly states what happens after an investigation. It could not be more explicit; indeed, it could not be more pedantic. Subsection (2) says that if
	a service policeman considers that there is sufficient evidence to charge a person with a Schedule 2 offence
	that is, a serious offence
	he must refer the case to the Director of Service Prosecutions.
	We are absolutely clear about the role of the service policeman. It is perfectly all right to specify that in the Bill. However, it cannot be specified in the Bill that the commanding officer will be empowered both to make representations and to be told of the outcome of the service policeman's investigation.
	I am sorry, but I must insist that that is not correct. It is fine to be prescriptive about the role of the service policeman, but I do not think it acceptable to argue that we cannot be prescriptive about the role of the commanding officer. The commanding officer is central to the whole concept of the chain of command, and to the protection of the men under his command. Unless the Minister is prepared to say that he will deal with that in the other place, I am afraid that I will seek to persuade the Committee to vote against the clause.

Gerald Howarth: The Coldstream Guards were based in Aldershot until last year, and they returned from Iraq after a difficult tour. Their padre is a close friend of mine. I spoke to several warrant officers in the sergeants' mess, and there is no doubt that some of them felt inhibited. I sought to say that an authority whom I regard as one of integrity told me that the position has improved, but the Minister will accept that the survey carried out on the 7th Armoured Brigade at the end of November and the beginning of December, and some of the remarks that have been made, indicate that there has been a problem.

Julian Brazier: We are now in a much more litigious era, with a well briefed enemy who is clever at working out fresh ways to make life difficult for our armed forces. The Bill will change the situation from one in which the CO has the powers to dismiss charges to one in which he is merely expected to be consulted. The Minister and his predecessor have been happy to make promises on the Floor of the House, so what is stopping the Government from providing the comfort of putting it in the Bill?

Patrick Mercer: The Minister has generously answered my point as far as it goes. I am grateful for his indication that it is at the heart of the debate because the crux of the matter is that in operational circumstances such as those which prevailed for the 2nd Royal Tank Regiment, the case of Trooper Williams, until it was satisfactorily dealt withby the CO in that caseseriously worried the rest of the regiment and caused operational ineffectiveness. If the powers to deal with such things during high-tempo operations were stripped away from COs, it could interfere with the operational effectiveness of units at that level.

Gerald Howarth: I made it clear at the outset, as did my hon. Friends, that the clause goes to the heart of the Bill and reflects some of the most significant changes to our procedures under the existing individual service Acts. We have sought not only to set out some of the concerns that we feel exist, but to make the case that, if the Government feel so strongly that what we are saying is already current practice, it ought to be stated in the Bill.
	I am sorry to disagree with the hon. Gentleman on his first outing as the Minister, but I feel very strongly about the issue. I have made the case in the Select Committee, I have the support of my hon. Friends, and we are disappointed that the Government feel unable to make such a change or, indeed, to offer us any possible change, not even further consideration before the Bill goes to another place. Therefore, I am afraid to saywith no personal disrespect to the Ministerthat I am not satisfied and that I will invite my right hon. and hon. Friends to vote against the clause standing part of the Bill.

Lembit �pik: I do not wish to detain the Minister, but he will accept that the hon. Lady's view is shared on a cross-party basis. The parents of those who lost their offspring at Deepcut Army barracks will feel disappointed that on Report the Minister and others did not get to discuss the recommendations of the Blake inquiry. Can he give the House an assurance that he takes the concerns of the parents seriously, and that there will be continuing discussion to see if we can bring about closure for the parents, albeit with the possible revelation of some as yet undisclosed reports?

Gerald Howarth: I join the Minister in thanking those who have contributed over the last four or five months to our deliberations on these matters. It is true that the Bill team has been working even longer; I think for 18 months. I should remind the House that when the House last debated this matter in 1955, the Select Committee took two years. I hope that the Minister will acknowledge that hon. Members on both sides of the Select Committee have undertaken in four or five months that which our predecessor Committee in the 1950s took two years to undertake. That seems like a productivity enhancement to me.
	I should also like to pay tribute, as I have done already, to the hon. Member for Islwyn (Mr. Touhig) for all the help behind the scenes that he gave, and to the Minister I am bound to say, A very good opening performance, and I hope that he will take some confidence from that. I also hope that he will accept that he has one of the best jobs in the Government in representing and acting on behalf of some of the finest men and women in our country.
	You, Mr. Deputy Speaker, said that consideration has now been completed, but consideration of the Bill has not been completed. We have not been able to discuss a number of amendments. The hon. Member for Blackpool, North and Fleetwood (Mrs. Humble) had tabled a new clause about an ombudsman that we were unable to discuss, and we had some concerns over service panels and the make-up of the court martial panels. We also had a concern that the director of service prosecutions must have a military background, and there were other issues as well. So unfortunately we will bid the Bill farewell to another place not fully considered here, and I hope that some of those points will be taken up there.
	One of the most important points about the Bill is the way in which it has been considered. The Select Committee procedure has been hugely beneficial, and the Committee so found in its report and recommended that the Government should consider applying the technique to other Bills. I have no doubt, seeing the hon. Member for Portsmouth, North (Sarah McCarthy-Fry) in her place, having participated assiduously in our proceedings, that it was extremely beneficial to all of us, however much experience we had of the military. We all took away a huge amount from the opportunity of being able to cross-examine people before us and make the visits. The Committee was better informed as a result. We may not all have heard the same things or interpreted what we heard in quite the same way, but the fact that we made those visits and held those proceedings was beneficial.
	It was always difficult for the Opposition given that the service chiefs had all signed up to the legislation. It ill behoves an acting pilot officer to question the Chief of the Air Staff, let alone the Chief of the Defence Staff, about whether he has got it right or not, but I would be quite interested to know in exactly how much detail each of the defence chiefs read the legislation.
	As I have said, the Opposition's approach was to look at the Bill from the point of view of how it will affect our armed forces on the front line, not so much how they will deal with discipline at home in Aldershot or Colchester. The debate about the chain of command and the power of commanding officers illustrated our genuine concerns about the administration of discipline, particularly where servicemen and women are felt to have acted outside the rules of engagement.
	It is good news that the Government have accepted the need for annual renewal. I thank the hon. Member for Islwyn for having acceded to that change, which is incorporated in the Bill. That welcome provision will give the House an opportunity to revisit how the changes are bedding down.
	The Minister has referred to the Bill's tri-service nature, which is widely accepted as being the desirable way to go. However, one of the things that came out of our visits to Cyprus, Oman and Iraq is that each of the armed forces fights differently and has an individual ethos. Paragraph 39 on page 13 of the Committee's report makes the important point that
	The way each Service fights is different and the Bill needs to accommodate those differences.
	We want to see everything in terms of joint operations, but that is not necessarily the case, because, as an old boy has said, many sailors will never work alongside a soldier or airman throughout their whole military careers. Some of those differences came out during our visits, and I hope that the Minister will reflect on how the Bill can be made to fit the individual service ethosthe desire of the chiefs to make the default position on courts martial panels single service is a good starting point.
	The Opposition have also taken the view that this body of military law is essential. We agree with the Judge Advocate General that the military should be governed by completely different law from that which applies to civilians. I hope that we have managed to accommodate the changes to civilian law to the extent that they will not damage the operational effectiveness of the armed forces.
	As a sideswipe at the European convention on human rights, I was concerned to be told during our proceedings in Select Committee that although the Bill is compatible with the ECHR, that is no bar to further challenges. I personally take the view that the European Court of Human Rights should have nothing to do with how the United Kingdom disposes of its armed forces. The protection of the members of our armed forces and their arrangements should be exclusively a matter for this Parliament and not for some court composed of a collection of foreigners. I feel very strongly about that matter.
	The test which we must apply to our deliberations over the past few months is whether we have provided our armed forces with a legal framework that will do them the justice that they undoubtedly deserve. There is not an hon. Member in this House, even among those who have spoken against the war in Iraq, who does not have anything other than unbounded admiration for our armed forces, and I hope that we have fashioned a law that will help them, that will protect them and enable them to do their magnificent work on behalf of the entire nation.
	I shall conclude with the military covenant, which is quoted on page 6 of our report and which sets out the Army's doctrine:
	Soldiers differ from civilian employees because success in military operations, when the price of failure may be death, requires the subordination of the rights of the individual to the needs of the task and the team, albeit within a legal framework.
	I hope that we have discharged our responsibility to the men and women of our armed forces to their satisfaction.

Don Touhig: I know the Armed Forces Bill as an old friend, having taken it through its Committee stages with a number of colleagues. In rising to speak from the Back Benches, I feel a little like the ghost of Christmas past.
	Let me begin by congratulating my hon. Friend the Under-Secretary on his appointment. I know that he will do an excellent job. I am sure that Members on both sides of the House will agree that having come into the job at such short notice he has done a very good job during today's debate. While I pass on the baton of Veterans Minister with considerable regret, I am happy to hand over to my hon. Friend some of the work in the red boxes. I am grateful to him and to other Members for their kind comments about my time as Minister, particularly so far as this Bill is concerned. I am conscious that the first contribution from a recently retired Minister may at times be an uncomfortable experience for those on the Front Bench, but I can put my hon. Friends at ease. I will enjoy my freedom from the security of collective responsibility by making it plain that I wholeheartedly support the Bill.
	With the strategic defence review in 1998, the Government recognised that we needed a single system of service law for today's armed forces. Our forces increasingly train and operate together, and they need a modern system of justice that reflects that. The Bill is the result of years of hard and dedicated work, and the services themselves have been at the centre of its development. Indeed, my right hon. Friend the former Secretary of State for Defence said on Second Reading that this is a Bill that has at its centre the armed forces themselves. In that sense, it is a Bill for the armed forces. It has their full support, primarily because it meets their needs in a way that has been absent for some time.
	I turn to the way in which the Bill has been handled, as referred to by the hon. Member for Aldershot (Mr. Howarth). I should like to add my thanks to the Bill team for their professional and dedicated support. When I was Minister, I knew at first hand that they did a tremendous job and that that was not often recognised enough. The special Select Committee procedure is a regular feature of the quinquennial review of service discipline. As has been demonstrated, it has been an outstandingly successful arrangement for the House. The evidence taken by the Committee, in what we might term the Select Committee stage, gave Members the opportunity better to understand the purposes behind the Bill.
	The combination of that expert testimony and line-by-line scrutiny in Committee means that this Bill has been considered in a far greater depth than many others. I pay tribute to my right hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth), who chaired the Committee with his customary blend of patience and purpose. He was ably assisted by the hon. Member for Salisbury (Robert Key), who has served on several special Select Committees considering service legislation. Indeed, his experience led me at one stage to consider asking him to join the Bill team, because I thought that he would make a considerable contribution. I join with all Members in wishing him a speedy recovery and return to the House.
	In Committee and in the early debates in the House and today, as well as in the media, I fear that we have heard a great deal of nonsense about our armed forces being under some sort of legal siege that is affecting the chain of command and blighting operational effectiveness. To me, legal siege is a loose, vague, woolly and wholly misleading term. As a concept it lacks intellectual rigour, and as a description it lacks a grounding in fact. I do not mean to say that certain perceptions do not exist in some quarters, although when reading some of the newspaper reports I am reminded of Nye Bevan, who, when asked whether he read the newspapers, said that of course he did because it was his one continuous source of fiction.
	I consider the so-called legal siege to be a mirage. The former Chief of the Defence Staff, the noble and gallant Lord Boyce, who has been much quoted today, could not give a single real example of how this intangible concept is supposedly affecting operational effectiveness. During the Committee stage, when asked by my hon. Friend the Member for North Durham (Mr. Jones), the then Chief of the Defence Staff, General Sir Michael Walker, gave the same reply:
	If you ask me to give you a physical concrete example, I cannot.
	I would remind Members of some wise words that we heard in the Committee's hearings, which I uttered earlier:
	I am sure that we all could play a better role in trying to dampen down this particular worry, and people like myself who are standing up and speaking in the House of Lords debates and so forth perhaps need to re-look at how we are saying things in order not to fuel anxieties of this nature.
	Those were the words of Admiral Lord Boyce himself, and I was grateful for his candour when he gave us that evidence in Committee.
	Perception stems from what is said in this place and in the press. If it is said often enough, it becomes a self-fulfilling prophecy. Hon. Membersof this House and the other placeshould be more temperate in their comments, otherwise they feed a perception that undermines the morale of our forces.
	We had much discussion in Standing Committee and this evening on the role of commanding officer. I should like to conclude by making it plain that the Bill has the support of forces and that the changes that we are making to the role of the commanding officer will be supported and welcomed. Indeed, many of our forces have welcomed the removal of the power to dismiss serious charges. I have a high regard for General Sir Mike Jackson, and he put it perfectly:
	As far as the Army is concerned, I would echo the fundamental place of the Commanding Officer in holding good order and military discipline and we are content that the new Bill secures that position. There have been changes but they are not changes which we think in any way are significantly detrimental to that pole position which we would wish the Commanding Officer to hold.
	I subscribe to his remarks.
	When we considered harmonising the powers of commanding officers, naval captains had perhaps most to lose. It was once said of the Navy in Nelson's time that, on board ship, the captain was second only to God, and that was only a matter of seniority. The Bill updates powers in the age of e-mail and satellite communications, and the then First Sea Lord made it clear when he gave evidence to our Committee that he was entirely happy with what has been retained. The changes in the Bill allow commanding officers to get on with what they do best: commanding, training and looking after the men and women under their command.
	As I said on Second Reading, we place an enormous responsibility on the shoulders of our servicemen and women. We ask them to operate in circumstances that are often difficult, unpredictable and dangerous. We ask them to perform tasks that have no parallel in the civilian world. When young men and women sign on to serve in our armed forces, they know that they may face circumstances in which they put their lives on the line. That does not happen to those who join Barclays bank or Tesco. It is the peculiar and special position of those who join our armed forces. Sometimes, they make the ultimate sacrifice. We have again recently mourned the deaths of our young servicemen and women in Iraq.
	Parliament and the armed forces demand high standards of behaviour from our forces, whether overseas on operations or training at home. Discipline is essential and service law is essential to enforce it. Ultimately we all want an effective and efficient fighting force.
	There is no doubt that we need a separate system of law for the armed forces and that it needs to reflect the increasingly joint nature of their work. The Bill delivers that. The forces want the measure. It will provide strong legislation for service discipline in the 21st century. I hope that it will have the wholehearted support of the other place and that it will soon be on the statute book.

Bob Russell: I pay tribute to the hon. Member for Islwyn (Mr. Touhig) for his past service as Under-Secretary. I believe that the Prime Minister has treated him shabbily by taking away the job after he piloted the Bill almost to the finishing post. It is something when one is deemed, at 58, to be too old to be the veterans Minister. However, I warmly welcome his replacement, the hon. Member for West Bromwich, East (Mr. Watson). As has been said, he performed spectacularly tonight and I wish him well in the future.
	We welcome the Bill. It has been a long haul and it now goes to the other place, where there will be an opportunity to do the fine tuning that perhaps some people feel is still required. I join other speakers in thanking the Bill Committee team for all their work in briefing hon. Members and helping them through the various Committee stages. I say various because it is the first time that I have served on a Committee that evolved in such a way, through Standing and Select Committee structures. I found it very useful and informative, and I hope that it will become the pattern for future Bills.
	The Bill will bring about the harmonisation of military disciplinary matters going back decades, if not centuries. It is not only the armed forces discipline Acts of 1955 and 1957half a century agothat are being updated. Certain measures go right back to the 19th century. It is right that, in the third millennium, we should have disciplinary procedures for the military that are fit for purpose, and that reflect the changing times and the increasing tendency for our armed forces to be on joint deployment, as we found when we visited British troops in Oman, Cyprus and Iraq as part of our investigation. I was impressed to see in Cyprus, for example, the military police from all three services working successfully as a single unit. In Iraq, we met helicopter pilots drawn from the RAF, the Army and the Navy working as a single unit. Joint deployment must not take away from the fact that each service has a special ethos, however. A naval helicopter pilot, for example, needs training and disciplines in maritime conditions, whereas those in the Armysuch as those in 16 Air Assault Brigade from Colchesterneed to operate rapid attack helicopters to get troops in at low level.
	I was delighted that, in addition to visiting Iraq, Cyprus and Oman, the Committee had the good sense to visit the military corrective training centre at Colchester. It sets an example that the prison service could follow, in that it provides a good way of training young menand, occasionally, young womenwho have committed misdemeanours but who are nevertheless an important part of the military, and of getting them back into military service.
	It is a special privilege to represent a garrison town, and I am particularly interested in the welfare of military discipline matters. We have heard a lot today about the command structure. In our garrison towns, we have garrison commanders. However, by the end of the year, they will no longer be there, because the reconfiguration will result in brigade commanders taking over the role. I discovered that yesterday, and I also found, to my horror, that Colchester's garrison commander, Colonel Tony Barton, will no longer be there. In fact, he is leaving the service because he feels that he is being forced out. That cannot be right, because garrison commanders are all part of the chain of command, and garrison boundaries and brigade commanders' boundaries are not always coterminous. I foresee problems arising from this change.
	I would like the Minister to comment on another matter, which I have raised in Committee. It is the potential conflict between Ministry of Defence police and the civilian police as a result of the growing tendency, following the forced privatisation of married quarters by the previous Tory Government, to sell the houses on. There is now uncertainty on one Army estate in Colchester as to what is military and what is civilian, and whether the MOD police or the civilian police should prevail. I am sure that the problem can be worked out, but it does need to be addressed.
	I am disappointed that our debate today dragged on in the way that it did, because it meant that we did not reach the amendment tabled by the hon. Member for Thurrock (Andrew Mackinlay). However, I hope that his proposal will come back at another time in another place.
	Will the Minister also confirm in his summing up that the disciplinary procedures will apply to the Gurkhas serving in the British Army? I mention that because I want to put on record that the United British Gurkhas Ex-servicemen's Association from Nepal presented a petition at No. 10 Downing street today about the injustices and unfairness suffered by those veterans. I hope that the Minister will confirm that today's Gurkhas will be treated on equal terms with the rest of the British Army.
	One interesting aspect of military discipline that was new to all of us on the Committee was AGAI 67it is just as well that it was not two more than that. Anyway, it stands for Army general and administrative instructions, which are low-level disciplinary procedures that can be carried out by sergeants and corporals as a form of immediate disciplinary action. I understand that the Bill will enable the Royal Navy and Royal Air Force also to introduce AGAI 67 minor sanctions.
	The Liberal Democrats support the Bill. It is important, however, that the ethos of the different services and the distinctiveness of the Army, Navy and Air Force are maintained and retained while at the same time harmonising disciplinary procedures, especially when we have joint deployments. I wish the Minister well as he takes the Bill through the House.

Joan Humble: Like other Members, I want to compliment both the former and current Minister and the whole team involved in this important Bill. However, the legislation must not only satisfy the needs of the armed forces but the needs of families who, sadly, have lost their children while serving in the armed forces and in peacetime barracks. They, too, are looking for answers in the Bill.
	The experience of Army life is of immense benefit to the overwhelming majority of young men and women able to take advantage of that career. At the same time, young soldiers are in a vulnerable position. Service life requires strict discipline and a tough regime. Sometimes, however, discipline and toughness become bullying and harassment. Our task is to minimise the opportunities for that to happen, and when it does, to provide a ready source of remedy to those so abused and harassed.
	I referred earlier to Nicholas Blake QC, who undertook the inquiry into the deaths at Deepcut. Like him, I do not believe that the current proposals in the Bill go far enough to ensure independent supervision and review of the discipline and complaints system. Like him, I believe that there is
	a danger that an historic opportunity will be lost for the Armed Forces to obtain independent assistance to achieve the goals they have set themselves to ensure the welfare of trainees and soldiers is effectively addressed.
	I, too, believe that the
	establishment of the office of a 'Commissioner of Military Complaints' is now an essential step in improving confidence, transparency and justice.
	Regrettably, we did not have an opportunity to examine in detail new clause 4. When my hon. Friend the Minister considers the detail of the 34 recommendations that Nicholas Blake put forward, I urge him to consider especially his recommendation for an independent armed forces ombudsmansomeone who is genuinely independent and has power to investigate complaints.

Joan Humble: As chair of the all-party group on Army deaths, I have met my hon. Friend's constituent when she has attended meetings of the Deepcut and Beyond families group at Westminster. One of the most important things that I and others members of that group do is to meet families who have lost their loved ones. I am sure that Mrs. Langford would be pleased were such an armed forces commissioner and ombudsman set up.
	I also advise my hon. Friend the Minister that Nicholas Blake says in his report that he has informally discussed the possible role of such a commissioner with commanding officers and others, and has understood that there is no objection in principle or practice to such independent oversight of the system, and nor is there concern that it will undermine military discipline. In further debate on this excellent Bill, I urge my hon. Friend to make it even better than it already is by introducing exactly such a system of independent oversight.

Sarah McCarthy-Fry: I welcome the Minister to his new role. I think that, given his performance today, he will be a formidable addition to the defence team. I also welcome the process by which the Bill was examined. We went through reams of written evidence in the Select Committee, and also had an opportunity to examine witnesses. For me, however, one of the most important parts of the process was the Committee's visit to Cyprus, Oman and Iraq, where we were able to speak to the guys and girls on the ground who would be influenced by and subject to the Bill.
	We ask our armed forces to operate in dangerous places and we ask them to put their lives at risk, so it is obvious that they must obey orders from their commanding officers. It emerged clearly today that we cannot allow people to operate like maverick loners. I think that the best way to prevent that is to foster team work, and to make a joint commitment to a common goal. Team work is much more likely to be generated by trust, transparency and openness than by operation as a secret closed group.
	Two issues became very clear to me as we debated the Bill. One was the removal of the power of the commanding officer to discuss a case, which has been much debated this evening. It was also discussed extensively with serving personnel during our visits. I do not accept that it damages the chain of command; I think that it enhances the reputation of our armed services. It represents a willingness not just to ensure that serious cases are investigated properly but to ensure that they are seen to be investigated properly, so that our armed services are held in the high esteem that we know they deserve, not just in this country but on the world stage.
	The second issue is the duty of care and redress of complaints, mentioned by my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble). We want our young people to choose the armed services as a valued career path where their capabilities will be stretched and their mettle will be tested, but where there is also a duty of care and an open and transparent redress procedure.
	I represent a city with a long and proud history of its sons and daughters going to sea to defend our shores in armed service. I have a vested interest in ensuring the safety and security of my constituency, which in the past has been a military target, and in ensuring that my country is protected by an effective and professional armed service. However, I also have an interest in ensuring that individual serving soldiers, sailors and airmen are protected by a duty of care, and that potential recruits are not deterred by the perception of a bullying culture or complaints hidden under the carpet.
	Despite the omission of an independent commissioner, which I hope will be discussed again when the Bill goes to another place, I believe that the Bill brings service discipline up to date. It reflects the modern worldthe very different threats that face us and our armed services and the highly visible theatre in which they now operate, with embedded journalists and images posted on websites and television stations. I am grateful for the opportunity to participate in the Bill's progress, and I hope that every Member will support it this evening.
	 Question put and agreed to.
	 Bill accordingly read the Third time, and passed.

COMMITTEES

Ordered,

Keith Vaz: I want to thank you, Mr. Speaker, for allowing me the opportunity to discuss detention without trial at Guantanamo Bay. I am pleased to see the Minister for the Middle East, my hon. Friend the Member for Pontypridd (Dr. Howells), on the Front Bench tonight, and I am glad that so many other Members of the House have taken such a strong interest in this subject. I am particularly pleased to see my hon. Friend the Member for Tooting (Mr. Khan) here, and I know that my hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott) hopes to join us later.
	This is the fourth such debate to be held in the four years since the detention facility was established in early 2002, and the first since the release of the remaining British citizens a year ago. It takes place at an appropriate time: on the back of recent comments made by my right hon. and learned Friend the Lord Goldsmith, the Attorney-General, and of the publication last Fridayjust in time for this debateof the United Nations convention against torture's critical report on Guantanamo.
	Also on Friday, I was sorry to hear of reports by the BBC and other news agencies that four detainees attempted to commit suicide, and that the efforts of prison guards to stop those attempts were met by violent resistance from other inmates. Sadly, it now appears that prolonged exposure to the conditions within the facility have caused the inmates to look to suicide as the only alternative. With that in mind, the recent speech of the Attorney-General deserves even greater consideration.
	On 10 May, the Attorney-General used a speech to the Royal United Services Institute to make clear his opposition to the continued detention without fair trial of those imprisoned at Guantanamo Bay. Lord Goldsmith stated that the camp should be closed
	as a matter of principle.
	Although he made it clear that, on this issue, he was speaking in a personal capacity, as one of this country's foremost and most respected legal expertsand, indeed, as the Government's chief legal adviserhis speech's significance cannot be underestimated. We all know of his intellectual prowess and determination. When he spoke, he meant what he said.
	The Attorney-General's opinion is the most recent development concerning this subject. On 17 February, the Secretary of State for Northern Ireland and for Wales, my right hon. Friend the Member for Neath (Mr. Hain), said that he would like to see the camp at Guantanamo Bay closed. Our Prime Minister, who has fostered an excellent relationship with the United States, has gone so far as to call the detention centre an anomalya view that he repeated at Question Time last week. Those three statements clearly reveal that the Government have not yet developed a coherent position on how the current situation should be resolved. Now is an excellent time for them to make such a statement.
	Only two weeks ago, President Bush, during a visit to the United States by Chancellor Angela Merkel, stated his desire to end detention at Guantanamo and to get the detainees into court. As everyone appears concerned, why is Guantanamo still open? The opinion of such figures clearly shows that the arguments about what has become known as Camp X-Ray are progressing in the same direction. Guantanamo cannot continue. Detention without trial at Guantanamo is not a necessary part of the global fight against extremism and fundamentalismalso known as the war against terrorismrather, it is counter-productive to the efforts of the international community.
	The tragic events of 11 September clearly demonstrated how vulnerable open and democratic societies are to the threat of organised terrorist networks. The subsequent military campaign in Afghanistanfully supported by this Government, NATO and the United Nationsresulted in individuals suspected of belonging to the al-Qaeda network being captured by the American military forces. More than 600 of these alleged terrorists have been received in the detention facility since 2002. Although some 270 have since been released without charge, almost 500 still remain. These include 220 from Afghanistan, 119 from Saudi Arabia, 94 from Yemen, 57 from Pakistan and smaller numbers of men from 35 different countries. Although all eight British citizens have been released, there remain another eight men who claim to have long-term British residency permits.
	I consider the United States to be a great friend and ally of this country, not merely through historical ties or present circumstances, but because of the very real values and interests that our countries share. As the Attorney-General remarked, the US is a great beacon of freedom, liberty and justice. That is the basis on which the strongest arguments can be made against the detention camp in its present form. Every day that those men are made to wait to face justice is a day that degrades the reputation of the US.
	That reputation for fairness and equal treatment, whatever one's race, religion or ethnicity, is one of the greatest tools we have in the battle for the hearts and minds of millions across the world and in the face of propaganda by such organisations as al-Qaeda. In that context, the existence of Guantanamo Bay damages the efforts of the American and British Governments to isolate the terrorists and prevent them from recruiting further converts to their cause. It helps extremists to fuel perceptions that the US, and the west in general, targets Muslims and denies them their human rights.
	The agenda of such extremist groups are obvious and can be discounted. What cannot be ignored is the list of independent and respected Governments and non-governmental organisations that have made clear their opposition to the camp's existence. The UN Secretary-General, Kofi Annan, has called for the camp's closure. Organisations such as Amnesty International and Human Rights Watch have been consistent in their condemnation. Amnesty is concerned at news of hunger strikes and suicide attempts by inmates and has called Guantanamo a moral disgrace, an emotional abyss for those affected and a legal black hole.
	As I said earlier, it can be seen from the number of hon. Members in their places, including my hon. Friends the Members for Kingston upon Hull, North (Ms Johnson), for Tooting, for Islington, South and Finsbury (Emily Thornberry), for Hackney, North and Stoke Newington and for Brent, South (Ms Butler), that this issue is of real concern. The legal arguments surrounding Guantanamo have become complex and polarised, with no consensus existing. None the less, it is a popular view, at least outside the US, that the basis for the detention camp rests on shaky legal foundations.
	The right to fair trial without prolonged detention is a fundamental and well-established tenet of international law, which is explicit in articles 10 and 11 of the universal declaration of human rights and articles 14, 15 and 16 of the international covenant on civil and political rights. If it is argued that the laws of war apply, the Geneva convention has strict criteria governing the treatment that prisoners of war should receive.
	The US Government argue that those prisoners are not in legal limbo but, pending a decision by the US Supreme Court, are nearing the time at which they will face trial before the military commission. Within the judicial process, it is claimed, the accused will have two opportunities to appeal to a fully civilian federal appeals court. However, that is not a reason to believe that the transportation of hundreds of individuals thousands of miles from their homelands and families and their imprisonment for years before trial is in any way justifiable.
	Unfortunately, whatever the legal basis for the detention, the damage has been done. It is now a popular view in this country and other countries that the US Government have operated outside international law, with a clear disregard for the concerns of the international community and its closest friends.
	In a series of statements from the State Department and the Department of Defence, the US has condemned the use of torture or inhumane techniques and pledged to prosecute any citizen found to have committed such acts. However, last week the United Nations committee against torture published its report on the detention policies of the US and judged them according to the convention against torture that the US ratified in 1994. The report concluded that the conditions for prisoners at Guantanamo Bay constituted torture and called for the camp to be closed as soon as possible.
	Allegations of torture must be taken seriously. The right not to face torture or inhumane or degrading treatment is an absolute right. After the appalling images of torture at committed by soldiers at Abu Ghraib prison in Iraq, it is essential that the United States and our Government make every possible effort to make it clear that any such abuse is unacceptable and should not take place. Unfortunately, in the case of Guantanamo, the closed nature of the camp, where even UN officials were prevented from meeting detainees without first signing a confidentiality agreement, has ensured that serious allegations about treatment proliferate.
	What we know comes from the American Army's Schmidt report, which details techniques also known as torture lite. Many of sections of the Schmidt report are still censored, but it details techniques such as 18 to 20-hours a day questioning for 48 in 54 days, blasting prisoners with strobe lights and ear-splitting rock music, the use of snarling dogs, threatening to hurt detainees' families and sexual humiliation. On that basis, I propose that a delegation of British parliamentarians be allowed to visit the detention complex in Guantanamo to assess the treatment of detainees. I should be grateful for the Minister's support for such a visit. If that is not possible, he should consider arranging a visit by our excellent Attorney-General so that he can assess the conditions of the detainees, as he has made his interest in the matter clear.
	Sir Winston Churchill noted that America always does the right thing after exhausting every possible alternative. In the case of Guantanamo, our ally is running out of alternatives and I am sure that, in the fullness of time, Washington will indeed do the right thing. I call on the Minister and his Department to help to ensure that that happens sooner rather than later. In particular, will the Minister clarify his position about the continued imprisonment of eight individuals who claim to hold British residency?
	On Thursday 5 May, representatives of two of those men lost a bid at the High Court to force the Foreign Secretary to intervene on their behalf. A Foreign Office spokesman said that the FCO was unable to provide consular assistance to
	those who are not British citizens
	which is a very strict interpretation of the Foreign Office remit. British diplomatic influence is not solely limited to the protection of British citizens; it also applies to British interests, which include upholding the principle of inalienable human rights. For example, Abdul Rahman is an Afghanistani who, on conversion to Christianity, was threatened with the death penalty. At the time, the Minister was on the record as deeply troubled by the case and he sought urgent clarification from the Afghani authorities. I commend him for having done so. Mr. Rahman was not British; indeed, he was on the other side of the world at the time. Surely, that is a common precedent whereby the Government can represent our concerns about the men with British residency held at Guantanamo. Will the Minister make such representations?
	The Prime Minister will be meeting President Bush later this week. I hope that he will use that visit to state the Government's concerns about the situation in Guantanamo Bay. Will the Minister confirm that that will happen?
	I also ask the Minister whether he would consider positioning the UK in the role of co-ordinator for those countries that still have detainees imprisoned at Guantanamo. The UK's relationship with the United States and its experience of having a number of citizens detained at that facility for years would allow the Foreign Office to operate in that much-needed capacity. However, such measures would be only half a solution. The problem with Guantanamo Bay is the existence of the detention facility, the way that it operates and the image that it presents to the world. It runs counter to the fundamental values that we hold dear and wish to protect: the right to fair trail, the right not to be tortured or treated inhumanely and the belief in the strength of openness, transparency and accountability. I call on the Minister to support the view of the Attorney-GeneralGuantanamo Bay must close, and it must close now.

Kim Howells: I congratulate my hon. Friend the Member for Leicester, East (Keith Vaz) on securing the debate, and I welcome the opportunity to debate these issues today. First, I want to reiterate the Government's position on Guantanamo. We have made it clear that we regard the circumstances under which detainees continue to be held at Guantanamo Bay as unacceptable. The US Government know our views. As my right hon. Friend the Prime Minister has said, as recently as four days ago, it would be better if Guantanamo were closed.
	We continue to raise these concerns in our regular discussions on detainee-related issues with the US Government. We seek to ensure that the handling of detainees is consistent with the British Government's other objectives, including preventing further terrorist attacks, undermining the work of those who recruit terrorists and upholding respect for human rights and the rule of law. As we do so, let us reflect on the circumstances that led to Guantanamo Bay.

Kim Howells: No, I am afraid not. If my hon. Friend will allow me, I have not much time in which to answer a very big contribution.
	As my hon. Friend has reminded us, almost 3,000 people were killed during the terrorist attacks on11 September 2001. As the Foreign Secretary told the Foreign Affairs Committee on 15 March, if September 11 had happened in this country rather than the United States, it would have changed our politics and security parameters just as it has changed the Americans.
	It is also important to recognise the dilemma faced by the US Government in considering Guantanamo's futurehow to balance collective security and respect individual's human rights at the same time. More than 270 detainees have been moved from Guantanamo back to their home countries or their country of origin. Many more are being considered for the same, under arrangements designed to ensure that they will be treated humanely on their return. That is not an easy process; it will take time.
	We expect the United States to be an example of fairness and justice, where civil liberties and human rights are protected and cherished. Sadly, they are not protected and cherished in some countries. Indeed, there are places where they hardly exist at all. The question is what happens to those who are left. One obvious answerwe have heard from some quarterswould be to release all the detainees at Guantanamo. I fear that that would not be entirely wise. It would hardly serve not only the US Government's own citizens but everyone else in the world if the Americans were suddenly to release people who could return to terrorism, as some of those already released have.
	My hon. Friend question raises a number of detailed issues that I am happy to try and address this evening. First, on the legal aspects of indefinite detention, it is useful to understand the US Government's legal position, even if one does not necessarily agree with it. The US Government believe that they are in a continuing state of at least potentially worldwide armed conflict with al Qaedathat is, at war. They believe therefore that the laws of armed conflict apply to those whom they detain. The US Government's view is that, under the laws of armed conflict, they are entitled to detain people until that war is over, as they did, for example, during world war two, when again no one knew how long the conflict would last.
	The British Government's view is that, whatever the status of the so-called global war on terror, the detainees at Guantanamo are entitled to humane treatment and, if prosecuted, to a fair trial. We have made that clear to the United States authorities. The United States is well aware of the UK's opposition to the death penalty under all circumstances. In private diplomatic discussions, at both ministerial and official levels, the UK has made its views known to the US Government and has made representations to them about the circumstances in which, and conditions under which, detainees are held at Guantanamo.
	After a lengthy series of discussions with the US, which were led for the Government by the Attorney-General, in 2004 the Government concluded that the military commissions process would not provide sufficient guarantees of a fair trial according to international standards. That eventually led to the release and return of the British detainees at Guantanamo. I am sure that hon. Members will be aware that the majority of the military commission's proceedings have been stayed, pending a US Supreme Court decision in June on the right of the detainees to challenge the legality of their detention.
	My hon. Friend raised the question of torture and other allegations of abuse at Guantanamo. Let me make our position on torture absolutely clear. The United Kingdom condemns unreservedly the use of torture and works hard with its international partners to eradicate that abhorrent practice. We abide by our commitments under international law, including the UN convention against torture and the European convention on human rights, and we expect all other countries to comply with their international obligations. We are active in pressing them to deliver on those human rights commitments.
	The US Government have given repeated assurances on this matter and on the treatment of detainees. Those assurances include the detailed public statement made by the US Secretary of State, Dr. Condoleezza Rice, on 5 December 2005, which confirmed that the US respects the rules of international law, including the UN convention on torture. Dr. Rice stated that the US does not authorise or condone the torture of detainees, and that torture and conspiracy to commit torture are crimes under US law wherever they may occur in the world. In addition, the US Detainee Treatment Act, which was enacted on 30 December 2005, provides that no individual in the custody or under the physical control of the US Government, regardless of nationality, shall be subject to cruel, inhuman or degrading treatment or punishment. That legislation makes a matter of statute what President Bush has made clear was already US Government policy.
	My hon. Friend has reminded the House of a report submitted on 15 February by five holders of mandates of special procedures of the UN Commission on Human Rights. A number of serious criticisms about the reported situation of detainees in Guantanamo Bay were made in that report. In their formal reply on 10 March, the US Government strongly objected to the report both in terms of process and of substance, and argued that factual and legal assertions in it were inaccurate and flawed. It is clearly important that the US Government and the UN continue to engage on those issues.
	My hon. Friend listed some of the techniques allegedly used at Guantanamo. Those allegations have surfaced previously in relation to UK nationals. I want to make it clear that, as far as allegations of abuse made by UK nationals previously held at Guantanamo are concerned, we take their allegations of mistreatment very seriously. In respect of the British detainees, we raised concerns about issues including isolation, lack of access to daylight, lack of exercise and delays with mail. We pursued those concerns with the US authorities and secured a number of improvements in the physical conditions of the detention of the detainees, as well as improvements to the exercise regime and mail service.
	The nine visits made by Foreign and Commonwealth Office officials to check on the British detainees' welfare showed us that, overall, the detainees appeared in sound physical health. The families of the detainees were given read-outs of the visits and statements were made to Parliament. Our visits found that medical facilities at Guantanamo were of a high standard. On each of the nine visits, we gave the British detainees the opportunity to express concerns about their treatment. None of them alleged to us that they were systematically mistreated at Guantanamo.
	Over the past few months, several right hon. and hon. Members have raised the circumstances of the former UK residents who are detained in Guantanamo. It is the longstanding policy of the UK Government not to offer consular assistance to non-British nationals, except in cases in which a specific agreement to do so exists with another state. My hon. Friend spoke of exceptions to that rule, such as the case of Abdul Rahman, the Christian convert in Afghanistan who faced the threatit was a remote possibilityof the death penalty.
	Hon. Members will no doubt be aware of the recent judicial review of the former Foreign Secretary's decision not to make formal representations to the United States Government for the release and return to the UK of three of the detainees held at Guantanamo Bay who were formerly resident in the UK. The court held that there was no duty on the Foreign Secretary in domestic or international law to make the formal request sought by the claimants. The claimants have been granted leave to appeal, so it would not be appropriate for me to say any more about the case at the moment.
	The court also recognised that the Government have made informal representations on humanitarian grounds to the US Government in respect of the detainee claimants. In 2005, my predecessor, Baroness Symons, agreed exceptionally to meet the families and representatives of those detainees who we knew were formerly resident in the UK, but were not British nationals, on a humanitarian basis. We passed on the concerns expressed to us by the families to the US authorities.
	I fully agree with my hon. Friend that there needs to be greater understanding of how Guantanamo operates. A visit by, say, the Foreign Affairs Committee would clearly help to achieve that. I understand that the Committee is already in touch with the US Administration about visiting the detention facility at Guantanamo Bay.
	As I have said, it is important that we never forget the context in which Guantanamo came about: the slaughter of 3,000 innocent people on 11 September. That was followed by atrocities in Madrid, Bali, Sharm el Sheikh, Amman, Istanbul, Riyadh and Moscow, and then last summer by the attacks on the London underground. The intent is clear. In Iraq and Afghanistan, the terrorists want to destroy new-found freedom and democracy and to kill people. I was in Baghdad when al-Zarqawi's suicide bombers murders hundreds of innocent Shi'a Iraqis in just a couple of bloody days. Understandably, I suppose, the fate of those poor people has not been the subject of intense legal and human rights scrutiny in the way in which the detaining of terrorist suspects at Guantanamo has. We do not expect civilised behaviour from al-Qaeda henchmen, but we should not forget that those people had human rights, too. It is right that Britain should stand firm with our friends and allies against such evil.
	All of us who care for the cause of civil liberties and human rights should pause and recall that those who were so brutally murdered in London on 7 July and in many other atrocities had human rights. Self-appointed executioners took those rights away from them, so we will continue to pursue those who commit acts of terrorism. At the same time, we shall maintain absolutely our commitment to civil liberties and human rights.

Kim Howells: No, I will not.
	It will not surprise my hon. Friend the Member for Leicester, East that it is not in my gift, nor, indeed, in the UK Government's, to close Guantanamo Bay. Our position is clear and consistent: it would be better if Guantanamo were closed. We will do what we can to bring that about, but hon. Members should recognise that that is not an easy task and that balancing security and liberty never has been easy.
	 Question put and agreed to.
	 Adjourned accordingly at twenty-nine minutes past Ten o'clock.